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STATEMENT OF THE
ADMINISTRATOR
AND
DEPUTY ADMINISTRATOR
A strong enforcement program is one of our highest priorities for
the Agency. Aggressive enforcement is the key to effective EPA, State,
local and international programs and a clean environment. We take
pride in our recent enforcement accomplishments. As our regulatory
responsibilities grow, we must maintain an enforcement program that
will protect human health and the environment, as well as promote
pollution prevention and waste minimization on the part of the regulated
community.
As part of our Agency-wide strategic planning process, we directed
the Office of Enforcement to develop a comprehensive enforcement plan
with both media-specific (i.e., air, water, toxics, etc.) and cross-media
components. The Enforcement Four-Year Strategic Plan outlines the
capabilities which will be needed to enhance enforcement efforts for the
future. Several are now being implemented on a pilot basis, while others
will be fully developed over the next several years. The Strategic Plan is
a sound guide for the Agency's future enforcement efforts, and we
commend it to the attention of Congress, the States, and the Public.
William K. ReUly
ADMINISTRATOR
F. Henry Habicht II
DEPUTY ADMINISTRATOR
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Introduction: Enforcement's Role in the Environmental Mission
In the Fall of 1989, Administrator Reilly and Deputy Administrator Habicht charged the
Office of Enforcement with developing a cross-media plan to drive the Agency's future enforcement efforts.
The Enforcement Four Year Strategic Plan , a collaborative effort of the Office of Enforcement and the
media compliance programs, is the result of that charge. It provides the "roadmap" for maintaining a
strong and successful enforcement program throughout the decade and into the next century. Gerald. A.
Bryan, the Director of the Office of Compliance Analysis and Program Operations, as well as his staff in
the Compliance Policy and Planning Branch, deserve recognition for their management of this effort.
The Administrator and Deputy Administrator recognize that enforcement has a unique
and powerful role to play in accomplishing the national environmental mission. Enforcement is the means
by which we assure that the promise of our environmental laws and regulations are realized. EPA and
the States have a strong base enforcement program that has produced record levels of activity, resulting in
significant improvement in environmental quality.
Now we must begin anew. Despite these gains - both in establishing rules and assuring
compliance with them - there are challenges ahead. There are still places where the air is unhealthy
and the water dirty. The failure of some facilities to maintain equipment properly could undo past
environmental gains. The regulatory agenda is expanding annually, although the Agency has not yet
achieved 100% compliance with existing requirements. Neither the regulatory nor enforcement process
can, in the near term, address every discharge causing a risk.
The Agency enforcement program will have to become more sophisticated in the years ahead if
it is to assure the integrity of the regulatory structure and solve the most pressing environmental problems.
EPA enforcement will look increasingly toward:
o targeting or focusing compliance monitoring and enforcement resources to achieve
environmental results in a manner both consistent with national priorities and
sensitive to Regional and State needs;
o screening for enforcement response and realizing the full potential of enforcement
authorities in addressing environmental problems;
o gaining the maximum leverage from each individual enforcement action, both in
terms of general and specific deterrence and incentives for the regulated community to
prevent pollution and minimize waste.
The time is ripe to apply the Agency's increasingly sophisticated data systems (media
compliance tracking systems, TRI, CIS, etc.) to achieve a focused approach to targeting, special initiatives
and case screening in conjunction with the base program. The Strategic Plan will fully integrate the
enforcement program with the goals and mission of the Agency as a primary tool in achieving the Agency's
environmental goals and objectives. The enforcement program will emphasize environmental impact and
results in setting monitoring and case selection priorities.
Enforcement can also play a major role in resolving problems that currently are not now
adequately addressed through the regulatory process. For example, enforcement can be used to promote
the Agency's pollution prevention goals, and could conceivably be used to augment the regulatory process to
address environmental problems caused by chemicals for which regulations are not yet in place.
Some, however, confronted with these challenges, view our multi-layered federal system as
a problem to be overcome. We view it as an opportunity to be grasped. This enhanced enforcement program
must be a joint Federal and State effort. Implementation can only succeed if the Regions, States and
localities all accept the approach and build the necessary enforcement, compliance monitoring, and
compliance promotion capacity. One of the major tasks of the national enforcement program shall be to
provide the training, expertise and direction needed to develop that capacity.
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The process of developing the Strategic Plan clearly highlighted the fact that additional
attention needed to be paid to the international aspects of environmental enforcement. Pollution respects
transnational boundaries no more than it does State or local ones, and coordinated activity must be brought
to bear on this increasing problem. That was the central message of the International Enforcement
Workshop, held in Utrecht, the Netherlands in May 1990. It was my privilege to co-chair the
Workshop, which provided the the impetus for the creation of an Office of Enforcement International
Strategic Plan. That plan, which is contained in Part III of this document, identifies many of the
activities needed to address this global challenge.
The Four-Year Strategic Plan is ambitious. Not all of the component parts will be implemented
immediately. No doubt some aspects of the plan will work differently than we anticipate - some for the
better, perhaps a few for the worse. We are confident, given the broad participation and comment from
inside and outside the Agency that the plan reflects, that when fully implemented, it will result in a
comprehensive media-specific and cross-media enforcement program which will serve well the Agency's
broader national and international environmental goals. The Office of Enforcement looks forward to
implementing it in concert with the programs, Regions, and States, as well as with other nations, and we
welcome your further ideas as we go forward together.
James M Strode
Assistant Administrator for Enforcement
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CONTENTS
PART ONE: THE NATIONAL STRATEGY
A. ENFORCEMENT OVERVIEW
I. Enforcement's role in the Environmental Mission
IL Overview of the Enforcement Strategic Plan
IE. The Enforcement Snapshot in 1990: Where We Are Now
IV. The Enforcement Snapshot in 1995: Where We Want to Be
B; KEY ELEMENTS OF THE STRATEGY
I. Strengthening the Institutional Enforcement Voice
IL Target Enforcement Resources and Special Initiatives to
Achieve Maximum Environmental Benefit
IE. Screening Violations and Potential Cases for Appropriate
Enforcement Response
IV. Improve Relationships with other Units of Government
V. Creative Use of Enforcement Authorities
VI. Expansion of Enforcement Communications Efforts
VII. Improving Infrastructure/Training
C; STRATEGY IMPLEMENTATION
L Strategic Choices
II. Near-Term Implementation
IE. Near-Term Action Items to Implement the Program
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PART TWO: PROGRAM-SPECIFIC COMPONENTS
A. AIR ENFORCEMENT
I. Stationary Sources
II. Mobile Sources
B. WATER ENFORCEMENT
I. NPDES
II. Safe Drinking Water (PWSS & UIC)
III. Wetlands
IV. Marine and Estuarine Protection
C. HAZARDOUS WASTE ENFORCEMENT
I. RCRA
II. UST
D. PESTICIDES AND TOXIC SUBSTANCES ENFORCEMENT
I. FIFRA
II. TSCA
E. FEDERAL ACTIVITIES ENFORCEMENT
I. Federal Facilities Compliance
II. Environmental Review Program
III. Indian Program
F. CRIMINAL ENFORCEMENT PROGRAM
G. APPENDIX: TOXIC RELEASE INVENTORY DATA
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PART THREE; THE INTERNATIONAL STRATEGY
A: GOALS
B: CURRENT ACTIVITIES
I. Civil Enforcement and Inspections
II. Criminal Enforcement
III. Outreach and Technology Transfer
C: CRITERIA FOR SETTING PRIORITIES
D: ACTION PROGRAM
VII
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Vlll
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PART ONE:
THE NATIONAL STRATEGY
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A. ENFORCEMENT OVERVIEW
I. Overview of the Enforcement Strategic Plan
The enforcement strategic plan is a comprehensive and functional guide for media-specific and
cross-media enforcement for the future. It lays out a direction for enforcement for FY 1992-95 and identifies
strategic choices for the Agency's planning and budget development efforts. The plan is built around
seven broad goals for an enhanced enforcement program (discussed below):
I. Strengthening the Institutional Enforcement Voice
II. Targeting for Maximum Environmental Results
III. Screening Violations for Appropriate Enforcement Response
IV. Improving EPA Relationships With Other Units of Government
V. Creative Use of Enforcement Authorities
VI. Expansion of Enforcement Communications Efforts
VII. Improving the Infrastructure/Training
The strategy which follows discusses the Agency's plans for making progress towards these
goals during the next four years. The enforcement program will be flexible and decentralized, heavily
relying on the Regions and States for effective implementation. Together with the "Enforcement for the
1990's Project," which is analyzing key issues relating to the rulemaking process, Federal/State
relationships and the measurement of enforcement "success," the four-year plan presents a "blueprint" for
FY 1992-95.
It identifies key elements of the enforcement program, including cross-media tools and
approaches and specific initiatives to be implemented between now and FY 1995. Some of the specific
activities and procedures of the plan were introduced on a pilot basis by Regions during FY 1990 and the
plan will identify activities where wider implementation can begin in FY 1991 and beyond.
The strategy also establishes an ongoing planning process that will be conducted annually so
that national priorities and initiatives can be updated and adapted to the specific needs of Regions and
States. It envisions that Regions will develop Region-specific enforcement plans for local implementation
with States, and that States will become increasingly part of the planning process itself over time. It
anticipates more attention to initial definition of environmental benefits to be sought and stronger
communications of results achieved.
Successful implementation of the strategy will require a new "mindset" on the part of all key
players, i.e., more coordination among Headquarters programs and new ways of conducting business in the
Regions, since the emphasis on targeting and screening for violations and enforcement response cross
individual media lines. It will also require better coordination with the States together with the joint
development of more sophisticated mechanisms for Regional and State oversight.
II. The Enforcement Snapshot in FY 1990: Where We Are Now
The Base Program
The Agency currently has a strong base program which emphasizes injunctive relief and penalties
to resolve priority violations, including those at Federal facilities. The following table indicates the
changing level of civil enforcement activity over the history of the Agency.
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In addition to this increase in civil judicial activity, the Agency has seen a major increase in
administrative enforcement based upon both historical and newly authorized administrative authorities.
For example, the Agency took over 4,000 administrative actions in FY 1989, the highest in history.
EPA CivU Referrals to DOJ
FY 1981 to FY 1989
FY89
TOXICS/
PESTICIDES
D WATER
HAZARDOUS
WASTE
AIR
The NPDES enforcement base program consists of general NPDES permit enforcement, and
pretreatment enforcement directly against industrial users as well as against municipalities without
approved pretreatment programs. The Stationary Air enforcement base program focuses on sources
contributing to ozone, SO2 and particulate matter nonattainment, and on air toxics (including asbestos
demolition and renovation). The TSCA enforcement base program emphasizes PCBs (primarily leak
detection and storage and disposal requirements), large asbestos abatement contractors, and reporting
requirements under sections 5 (premanufacture notification), 8 (reporting and records) and 4 (test rules),
ensuring the quality of chemical test data submissions by the United States and foreign countries (GLP),
and enforcing the new requirements under EPCRA. The FIFRA enforcement base program emphasizes
cancellation and suspension actions, worker protection, and groundwater and endangered species
requirements, and is moving into pesticide use enforcement to assure food safety. The RCJBA enforcement
base program has emphasized interim status requirements for Land Disposal Facilities (LDFs), but is
entering a new phase which will concentrate on enforcing permits at LDFs and requiring and overseeing
corrective action. The CERCTLA enforcement program (Superfund), consistent with the 90-Day
Management Review, will emphasize an "enforcement first" approach designed to maximize private
party cleanup (Section 106) and cost recovery (Section 107). The PWSS enforcement base program
emphasizes compliance with existing MCLs, while also developing a strategy to assure compliance with
the newly regulated contaminants which will be phased in as a result of the 1986 SDWA amendments.
The UIC enforcement base program has emphasized Class I and Class IV wells, and will place additional
emphasis on Class V wells that pose the greatest risk to USDWs. The Wetlands enforcement base
program focuses on unpermitted discharges to wetlands. The UST enforcement base program emphasizes
building State compliance and enforcement programs, while maintaining a limited ("backup") direct
enforcement role. The Mobile Source enforcement base program is responsible for motor vehicle fuel and
motor vehicle emission control anti-tampering and warranty requirements. (See Part II for complete
description'of media programs.)
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For these base programs, the programs and delegated States have adopted the elements of a
"good" enforcement program defined by the Policy Framework for State/EPA Agreements, including
definitions of Significant Noncompliance (SNC), "timely and appropriate" response policies (penalties
and escalation criteria), and reporting and oversight requirements.
State enforcement has also maintained generally high levels over the last four years;
administrative actions have remained fairly consistent since 1987 (ranging between approximately 8,700
to 9,300 administrative actions), while the number of judicial actions increased during that time over
previous years.
Criminal Enforcement
The Agency's criminal enforcement program has also expanded greatly over the past several
years. Since 1982, individuals have received prison sentences for committing environmental crimes
totaling 119 years and over ,544 years of probation have been imposed. The program set a record in FY1989
for criminal referrals, cases successfully prosecuted, defendants convicted, and fines assessed. The goal of
the criminal program is to support national priorities while simultaneously being sensitive to Regional
differences and the heed of each media program for appropriate criminal cases to reinforce or complement
its respective enforcement goals and strategy. It is continuing to enhance its working relationship with the
FBI and devoting resources to promote State training through the Federal Law Enforcement Training
Center (FLETC). EPA has funded four regional State enforcement organizations. All have developed
ambitious training programs which have helped promote State criminal environmental enforcement
programs.
Federal Facilities
The Federal Facilities Compliance Program issued the Federal Facility Compliance Strategy
last year and is now implementing it in order to achieve and maintain high rates of compliance. The
program currently focuses on the inspection of major facilities to ensure that they are inspected no less
frequently than specified by media-specific guidance, with an objective of assuring that Federal Facilities
compliance rates are at least as high as other source categories. EPA's strategy is to maximize the use of
its available enforcement authorities within established timeframes for taking enforcement action. The
program has also been successful in negotiating 50 compliance agreements at Federal facilities. These
compliance agreements resolved fundamental inter-Agency and State/Federal policy issues, providing a
foundation for subsequent agreements.
Needed Adjustments
made:
Despite these real advances in the overall enforcement effort, additional adjustments need to be
1. While each of the programs employs general "targeting" approaches, the Agency has not
yet developed a more focused within-media or cross-media targeting capacity based on
health and ecological risk. NEIC is working on developing this type of technical targeting
capability, as are a few of the program and Regional offices, through the use of TRI data, but
this is an initial effort that is far from being operational throughout all of the
programs and Regions.
2. The civil judicial and criminal enforcement programs have not yet become completely
integrated into program decision-making (Headquarters and Regions). More formal
institutional relationships are needed to make sure that appropriate judicial cases are
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identified and developed, and that the choice of proceeding administratively, civilly, or
criminally is properly explained and understood. This requires more "networking" between
criminal and civil enforcement personnel and a recognition on the part of the Regions that
criminal enforcement is a powerful tool for promoting Agency goals.
3. The Agency needs to go beyond traditional measures of enforcement activity (e.g., numbers of
orders, referrals, prosecutions) and evaluate the overall impact (qualitative and
quantitative) of the enforcement programs. This requires more emphasis on flexibility,
program management, and communications.
4. A major effort must be made to institutionalize the transfer of technology and skills to help
States improve compliance and enforcement activities. The Agency should also identify and
adopt the most successful State enforcement tools for its own use.
HI. The Enforcement "Snapshot" in FY 1995: Where We Want to Be
The "Total" Enforcement Capability
The Office of Enforcement and the Program Compliance Offices have identified a series of
"capabilities" or attributes of an enhanced enforcement program. They are grouped according to
seven major "themes" that form the goals of the strategy.
The capabilities listed below are the components of a sophisticated, results-oriented
enforcement program. While the Agency may not develop all of these capabilities by FY 1995, the
goal is to come as close to realizing them as possible, so that the institutional mechanisms needed to
achieve them have been put in place.
Theme 1: Strengthening the Institutional Enforcement Voice
Capabilities
a. The Agency will establish clear leadership on enforcement matters.
b. All regulations and permits will be enforceable (i.e., be reviewed for enforceability and
developed in conjunction with an enforcement/compliance strategy and response policy) so
that violators can be brought into compliance expeditiously, the integrity of the regulatory
scheme is maintained and the environmental intent of the regulation is achieved. Field
testing of certain regulations will be performed to make certain that they are understandable,
practical, and enforceable.
c. The Agency will reduce unnecessary levels of oversight, duplication, and inefficiencies in
the enforcement system.
Theme 2: Targeting for Maximum Environmental Results
Agency enforcement will be oriented toward areas with the greatest environmental and
health problems, and which maintain the integrity of the regulatory structure.
Capabilities;
a. Each media compliance office will develop a more sophisticated inspection
scheme (e.g., stratified sampling) to develop an optimum "mix" of breadth (general
deterrence) and depth (focused environmental impact) in its enforcement approach.
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b. The Agency will promote more innovative use of information-gathering and order
authorities so that the programs can have more complete data with which to better
target enforcement resources within and across programs.
Theme 3: Screening Violations for Appropriate Enforcement Response
The Agency will use the full range and potential of its relevant statutory authorities in order
to resolve violations in the most efficient and effective way.
Capabilities:
a. The Agency will develop linked data systems that accurately reflect compliance
and enforcement status and strengthen the institutional capacity to "look" across
programs.
b. The Agency shall develop an administrative, civil and criminal enforcement
within-media and cross-media screening capability for data, information, and
evidence of potential violations so that the enforcement response reflects
Agency-wide policies, program priorities and cross-media considerations, and
resources will be directed where they achieve the most environmental
improvements and the greatest deterrence.
c. The Agency will make more effective and consistent use of its penalty sanctions
and litigation in order to leverage the deterrent impact of its enforcement program.
Theme 4: Improving EPA Relationships with Other Units of Government
The Agency will ensure that States have adequate authority and technical capabilities to
enforce national environmental requirements and are conducting effective enforcement programs. EPA
also will gather the information needed to evaluate the progress made by the State in promoting
compliance with environmental laws. The Agency will also strengthen its relationship with other
units of the Federal government (e.g., OSHA, SEC), and improve its interaction with localities,
citizen groups, and other nations to support its environmental goals and mission. For example, focused
citizen activity could supplement Federal and State case screening procedures by helping assure that
small, on-going violations are detected and resolved. This will be addressed more fully in the
Enforcement for the 1990's project.
Capabilities;
a. The Agency will strengthen the State/EPA Agreements process in order to promote
stronger and more effective State enforcement programs. The Agency will solicit
State input in the development of enforcement priorities through the annual
operating guidance and program-specific processes.
b. The Agency will assure that oversight procedures of Regions and States reflect the
enhanced enforcement approach.
c. The Agency will expand cooperation with other Federal agencies and countries in
the areas of environmental compliance and enforcement (e.g., through formal MOUs
or MO As), including enforcing international agreements (see Part III).
d. The Agency's enforcement and compliance policies and procedures will recognize
the importance of, and unique requirements for dealing with, Federal facilities and
Indian tribes. The Agency will develop an innovative Federal facility enforcement
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program, applying a comprehensive multi-media approach to compliance and
clean-up problems, including employing pollution prevention strategies and
improving its oversight and tracking of compliance efforts by other Federal agencies
and providing targeted assistance in identified compliance problem areas.
e. EPA will expand the role of local governments by identifying those regulatory
programs which are most amenable to civil and criminal enforcement'activity at the
local level and by expanding opportunities for training and information exchange for
district attorneys and investigators in conjunction with other law enforcement
organizations.
Theme 5: Creative Use of Enforcement Authorities
The Agency will expand the use of non-traditional enforcement and compliance approaches in
order to leverage the environmental and deterrent effect of individual enforcement actions.
Capabilities;
a. The Agency will look for opportunities to employ pollution prevention, contractor
listing, and "field citations" during the case development and settlement process.
b. The Agency will consider additional ways to shift the cost of enforcement and
compliance monitoring to the regulated community (e.g., reporting, self-auditing),
with appropriate Agency oversight, in order to free more enforcement resources for
identified priority areas.
c. The Agency will push for enactment of additional legislation needed to fill
"gaps" in existing enforcement authority or to fill perceived new needs (e.g., the 1989
Ocean Dumping Improvement Act).
d. Where appropriate, the Agency will explore the use of alternative dispute
resolution techniques that can expedite compliance.
e. The Agency will emphasize case closure (as well as initiation of new cases) and
assure timely compliance by making sure resources are available for tracking
settlements, judgments and other enforcement actions (both penalties and
performance).
Theme 6: Expansion of Enforcement Communications Efforts
The Agency will aggressively expand its public outreach and communications efforts to
encourage compliance and enhance the deterrent value of its enforcement activities.
Capabilities:
a. The Agency will disseminate a larger volume of selected information about
specific enforcement actions to a variety of media markets and interest groups.
Public awareness of Agency activity will be enhanced and compliance encouraged by
augmenting reports of environmental statistics.
b. The Agency will emphasize efforts to communicate about the environmental
benefits associated with key case-specific developments in addition to the bare
facts of the level of enforcement activity. The integral role of enforcement in
environmental protection will be highlighted in these efforts.
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c. As part of its development of enforcement communication strategies, the Agency
will develop methods for the dissemination of enforcement information specifically
targeted at appropriate recipients. Precision in reaching out to the appropriate
recipients for case-specific information will help ensure that EPA communications
effectively enhance the deterrent value of key cases.
d. The Agency will train its enforcement personnel in effective communications
techniques and in coordinating their efforts with EPA communications planners.
Emphasis will be placed on working with the press and public affairs organizations
within the Agency to contribute to the overall coherence of EPA's communications.
e. The Agency will make every effort to augment specific enforcement initiatives
with timely, comprehensive, strategic communications planning. Opportunities will
be aggressively sought to increase the visibility of enforcement efforts as an integral
part of EPA's overall effort to improve the environment and guard public health.
Theme 7: Improving the Infrastructure/Training
The Agency will develop the tools and processes needed to implement and evaluate the
enhanced enforcement approach.
Capabilities;
a. The Agency will develop a new institutional capability in the Regions to
implement the enhanced enforcement approaches of targeting and screening within
and across program lines.
b. The Agency will develop a research capability to more fully analyze compliance
issues (e.g., the impact of deterrence on the regulated community), to assist the
Regions and States in targeting and screening, and to measure and evaluate the
effectiveness of enforcement programs and techniques.
c. The Agency will place more emphasis on human resources issues (i.e., attracting,
developing, and retaining qualified staff) by making a concerted effort to enhance
the career path for enforcement personnel, including training and advancement
potential. The Agency will also consider the appropriate enforcement "skill mix"
for the future (e.g., training specialists in specific industries with significant
compliance problems). Emphasis will be placed on examining all facets of the
potential workforce, including retirees.
d. The Agency supports four regional State environmental enforcement organizations
and their training programs to build stronger State and local multi-disciplinary and
multi-media capabilities and to facilitate the transfer of technology and skills.
B. KEY ELEMENTS OF THE STRATEGY
The strategy sets out the Agency's plans for making progress toward each of the seven goals.
It emphasizes specific capabilities which the Agency should implement first (i.e., beginning in FY
1991-92) as the essential building blocks of the enhanced environmental enforcement program.
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I. Strengthening the Institutional Enforcement Voice
A. The Focal Point for Enforcement
While specific functions relating to compliance monitoring and enforcement are located
throughout Headquarters and the Regions, the Assistant Administrator for Enforcement will be the
Agency's voice on matters relating to enforcement of environmental laws. The Regional
Administrator will be the voice of enforcement in each Region, with the close assistance of the
Deputy Regional Administrator.
B. The Enf orceability of Regulations
While the success of environmental regulations depends on strong enforcement, strong
enforcement depends on precise and carefully crafted regulations and permits which clearly mark the
line between compliance and noncompliance.
Not all of the Agency's regulations meet that test. Some requirements have been adopted
without the availability of testing procedures to measure whether a facility is violating that
standard. In some cases, it is difficult to determine the applicability of a regulation to a particular
facility. Vague regulations hinder the enforcement process, either by limiting the opportunities for
case development or increasing the time and cost of litigation.
Both the Office of Enforcement and the Program Compliance Offices must become "up front"
and formal participants in the regulatory development process to ensure enforceability from both a
practical and legal perspective. This will involve both Headquarters, Regional, and possibly even
State and local personnel. The Agency will develop criteria for deciding which proposed regulations
will require an Enforceability Assessment prior to final promulgation. Proposed regulations which
meet the criteria must be developed in conjunction with an enforcement response policy and
implementation plan, and may be subject to Regional "field testing" (including "dry run" inspections
at applicable facilities) before they become effective. Selected regulations will also be reviewed
approximately one year after promulgation both to analyze their enforceability and to make any
adjustments relating to the implementation of the regulations.
C. Efficiency Improvements
Over the past several years, the enforcement program has taken steps to make the process
more efficient (e.g., through the direct referral process) and we will continue to look for additional
opportunities in this area.
II. Targeting for Maximum Environmental Results
A. Criteria for Setting Priorities
Four basic criteria guide priority setting for enforcement. Priority inspections and enforcement
actions should be based on the extent to which the activity is likely to result in one or more of the
following objectives being met: reduce risk to human health and the environment; prevent pollution
or minimize waste; preserve the integrity of the regulatory structure: and deter violations in an
important regulated sector.
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B. Base Compliance and Enforcement Program
The Agency's enforcement program will include both a base program and special initiatives.
The base program consists of the traditional medium-specific statutory and regulatory requirements
that comprise the bulk of the current program and covers existing program priorities and SNC
definitions, "timely and appropriate" criteria, enforcement response policies, and routine inspection
schemes for selecting facilities to be inspected. The media programs should review (and revise as
necessary) their inspection schemes and enforcement policies to assure that the base program
identifies and resolves the most significant violations. Some criteria for "targeting" in the base
program include facility characteristics (size, location, compliance history, TRI "profile" of toxic
material handled, etc.) and the specific type of violation (direct environmental impact, potential
for pollution prevention remedies, impact on regulatory integrity, etc.), and the level of enforcement
response to be made to various kinds of violations (i.e., escalating based on seriousness of violation
and compliance history as well as likelihood of deterrent effect). (See Part II)
C. Special Initiatives
While recognizing the on-going central importance of the base program and the resources
devoted to it, the Agency will formalize new targeting approaches for special initiatives that will
direct more of its compliance and enforcement resources at environmental problems which may not be
addressed through the current regulatory, statutory, or organizational framework, or where existing
authorities could be aipplied in a more concerted manner to maximize environmental improvements.
The purpose of special initiatives is to concentrate enforcement efforts toward resolving specific
environmental compliance problems, although in some instances full resolution of the problem may
require permit revisions or new standard-setting.
Examples of "front-end" targeting approaches include:
a. Compliance-Base Targeting; Analysis of compliance data may indicate patterns of noncompliance
within or across media by particular corporations (including subsidiaries), including those with
facilities in several States or Regions. A coordinated enforcement effort might be initiated as the
most effective means of resolving the noncompliance pattern.
b. Geographic Targeting; Geographic areas where there are substantial risks to human health or the
environment can be targeted for inspections (within a single media or multi-media) and enforcement
actions. Special projects might include identifying all facilities (large and small) in an area with
significant water and/or air quality problems, inspecting them to determine whether they are in
compliance with relevant regulations or permit conditions, and taking enforcement actions to resolve
noncompliance. This can be tied to specific environmental quality goals for the area. For example,
the NPDES program is currently reviewing the status of enforcement work in the Chesapeake Bay
area with Region 3, and may undertake additional special initiatives in the near future on a
coordinated basis with the Region. Similarly, the NPDES and Wetlands programs will consider a
potential multi-media initiative for the Puget Sound (or similar body of water) in FY 1992.
As part of a geographic initiative, specific industries or industrial processes which generate
major pollution problems could also be targeted for inspections, information gathering or potential
enforcement action. For example, assuming enactment of new legislation, the RCRA enforcement
program will undertake targeted initiatives against waste exporters. The OPTS enforcement program
will continue to develop industry-specific targeting schemes by using existing and new compliance
data bases.
c. Pollutant-Specific Targeting; Initiatives may focus upon single or cross-media public health or
environmental risks associated with particular pollutants (or categories of pollutants). The NPDES
program may target for chemical-specific toxic limits as they become effective in permits in FY 1992
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and FY1993. The Stationary Air program will begin an ozone precursor initiative in FY 1991, tailored
to the unique factors in given Regions, States, and localities, and will target additional sources of
toxic air emissions.
d. Targeting by Industry or Industrial Processes; Some industries responsible for major, high risk
sources of water, land, or air pollution would be identified for inspections or special information
gathering efforts and potential enforcement action. In an industry targeting special initiative, an
industry responsible for significant releases could be identified, and teams experienced in the
processes, practices and materials of that industry could conduct inspections (and enforcement actions)
and also serve as consultants/trainers to other Regions, States and localities facing similar
compliance problems from the industry.
e. Targeting to Address Compliance Problems in the Public Sector; Lack of compliance with
environmental requirements at Federal facilities has resulted in many significant environmental
problems. Policies and programs to address these problems in the enforcement context are more firmly
established now, allowing for enforcement initiatives in this arena. Programs involving
publicly-owned facilities such as water supplies and schools have not in the past had a strong
enforcement focus for a variety of reasons, yet noncompliance may present significant risks to the
public. Creative use of enforcement authorities as well as publicity can be expected to generate the
public will — and financing — to address these problems.
The NPDES program may need to continue to emphasize efforts against municipalities which
are failing to meet their pretreatment programs. The OPTS enforcement program plans an initiative
against PCB violations at Federal facilities. The Federal facilities universe will be used to develop
and test strategies to address noncompliance with the requirements of multiple statutes. Lessons
learned in the development of the multi-media approach have broad applicability for non-Federal
facilities.
f. Targeting to Assure Integrity of the Regulatory Structure; Violations for "inaction" such as failing
to acquire a permit, failure to report a release or submit data for chemical reviews, or for "outside the
system" violations like "midnight dumping," make it more difficult for programs to define their
regulatory/compliance universe, and develop program priorities. The RCRA program will target
illegal disposers and explore ways to identify handlers through records or data bases. RCRA will
also target non-notifying TSDFs, especially those managing newly-regulated waste streams. The
Wetlands program will continue to focus on dischargers who did not obtain a Section 404 permit.
These types of violations are among the most difficult to detect and may require special
initiatives, including clustered enforcement actions on non-reporters and special investigations, using
TRI to cross-check the universe of regulatees. When detected, these violations may be especially
appropriate for criminal enforcement to enhance general deterrence. (See "Screening," below.)
A concentrated enforcement effort might also be initiated when a new regulatory requirement
takes effect to deter violations by showing the regulated community that noncompliance will be
taken seriously.
B. Tools for Improving Targeting Capability
This emphasis on targeting and special initiatives will require development of new
institutional relationships and staff capabilities, coupled with developing methods that promote
the effective use of the compliance and enforcement and ambient monitoring data which the Agency
collects.
a. Data Linkage Project; An effort is currently underway to establish links among the various media
compliance data in these systems and develop estimates of cost and timing. The methodology centers
upon the Facility Index System (FINDS) and the Facility Identification Number (EPA ID). FINDS is
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also envisioned as the central repository of the facility corporate identification number, to be taken
from the Dun and Bradstreet (D&B) Marketing Index. D&B provides information on corporate
parentage along with information on industrial sector (SIC) codes. When operative for each media
system, so called "smart" computer software programs (soon to begin development) will be able to
logically link information on compliance and enforcement data from these systems based upon
vertical and horizontal corporate structure, industrial sector, pollutants, and/or geographic areas.
b. Toxic Release Inventory: Programs should also make greater use of the Toxic Release Inventory
(TRI) as the data base is refined over the next several years. It should be used in conjunction with the
program compliance data bases to identify targeting opportunities. TRI data on a particular chemical
can be overlayed on media-specific automated systems to obtain data on permit limits, inspection
history, and compliance history. Anomalous data (e.g., "unaccounted for" emissions coupled with a
history of similar violations) would trigger further review and potential enforcement response. The
NDPES enforcement program also plans to use the TRI data to identify unpermitted dischargers and
to identify industrial users where EPA or the pretreatment State is the control authority. (See
appendix for further uses of TRI.)
c. Technical Support from NEIC: The National Enforcement Investigations Center (NEIC) has
substantial experience in extracting compliance data from a variety of Agency (and non-Agency) data
systems, and is a resource the Regions should draw upon for compliance profiles and enforcement
targeting information. For example, NEIC and Region 4 are applying the GIS capability to its
multi-media SNC list. This will enhance analysis of targeting opportunities which consider both
human health risk factors and facility compliance history. This will result in a prioritized list of
facilities that pose the greatest exposure risk to human health. NEIC and the Office of Federal
Activities (OFA) will also implement a prototype multi-media inspection program which can be used
by the Regions to select and inspect the most environmentally significant Federal facilities on a
Region-by-Region basis. The Office of Enforcement will also provide assistance to program and
Regional components for litigation arising from special initiatives.
d. Regional Enforcement Pilot Projects: Targeting approaches are being tested in the Regions. The
Pilot Projects are based on the premise that many pressing environmental problems do not neatly fit
within the current enforcement system. The Enforcement Management Council will oversee these
efforts, and the Regions will have resource flexibility to identify any STARS commitments that may
not be met in FY 1990 because of support for the pilots.
Not all the methods and techniques that will be used to target inspections will be equally
successful. As targeting approaches are implemented, it is important to measure the "baseline"
situation at the start of the initiative so that evaluation of the impact of the initiative is possible.
The continuing examination of the effectiveness of various approaches will influence future targeting
efforts. The Agency will develop a system to set an appropriate resource balance between the base
program and special initiatives.
IIL Screening Violations for Appropriate Enforcement Response
The growth in the number of enforcement actions and the competing demands for resources to
support case development will compel the Regions to choose cases with the greatest potential for risk
reduction and deterrence.
The Agency's administrative enforcement component has expanded significantly in recent
years, and it is anticipated that the large majority of violations will continue to be handled
administratively. However, this "normal" approach may not be the most appropriate enforcement
response to violations which pose significant health or environment risk, require complex technical
response, or involve potential precedents.
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Each Region needs to develop an institutional capability to identify those cases with the most
"strategic value" (see Screening Factors below) that warrant a formal enforcement response and to
decide upon the most appropriate form of response: administrative, civil judicial, or criminal. Each
Region should also have the institutional capability to determine whether a single-media or
multi-media response is warranted. Because of its great deterrent value, it is particularly important
to identify potential criminal cases when the fact pattern suggests continuing noncompliance which
cannot be corrected by injunctive relief, falsified information or other illegal activity.
A related factor is to decide what statutory authority or authorities should be used to address
significant problems. In some situations, the original inspection might have been performed under one
program authority, while the more effective enforcement authority lay elsewhere (e.g., some types
of air toxics violations being addressed by CERCLA 106). Similarly, a multi-statute case may be
appropriate when violations at a facility are found under more than one statute. A multi-Regional or
national case may also be appropriate for a corporation with facilities in a number of States.
A. Screening Factors
Factors for assessing overall "strategic value" include:
the amount of environmental improvement or risk involved (e.g., the amount of
pollutant to be removed as a result of the enforcement action);
size of the potential penalty amount;
compliance history (e.g., whether the violator's past record warrants a civil or
criminal referral);
potential for waste minimization or pollution prevention;
multi-media case potential;
deterrent value (i.e., the extent to which a case "sends a message" to the
regulated community);
Regional, multi-state, or national case potential (i.e., whether the noncompliance is
part of a pattern of noncompliance by subsidiaries of a parent corporation)
B. Regional Screening Process
In order to effectively address these situations, each Region will develop a screening process
to judge the strategic value of the enforcement action and to decide whether a single or multi-media
response is appropriate, as well as what type of enforcement authority (administrative, civil
judicial, criminal) should be used to address the violation. Cross-media issues in particular need to be
identified at the beginning of the process, rather than at a later stage when one program is ready to
move the case forward.
The screening process should involve.coordination among the Program Directors, Regional
Counsel, ESDs, and the SAIC to assure that the best remedy is selected for each fact situation. It is
particularly important that all Regions review enforcement cases for their criminal potential. In
order to eliminate potential "friction" arising from the different procedures and safeguards of the
criminal enforcement process, the Office of Criminal Investigation will work with the Regional
Counsels and Deputy Regional Administrators to establish guidance on definitive timelines to
encourage early, "up front" decisions once a potential criminal case has been identified so that a
decision as to whether or not the case should go forward as a criminal referral (or some other type of
enforcement response) can be made and resources allotted in a timely way.
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Each Region will develop its own screening structure, e.g. a standing committee which meets
periodically to review potential actions and decide on a coordinated response. Any disagreement
over the decision to pursue a violations) exclusively with civil enforcement authorities will be
resolved through the current Agency dispute resolution procedure. Nothing in the case screening
process precludes OCI from investigating and presenting to the Department of Justice any matter
where there is material evidence of a crime. Nonetheless, the case screening process is intended to
recognize EPA's right to establish priorities and allocate resources.
Regardless of the exact procedure, the key point is that the decisions on enforcement response
for at least certain significant violations and whether multi-media enforcement is feasible will not
be made unilaterally by the program that conducted the inspection and identified the violation.
Rather, a process will be developed to assure the greatest benefit from our enforcement resources is
received. In this connection, we recognize the resource implications of a screening process are high,
and not every violation requires such scrutiny. Each media program will develop screening criteria to
determine what potential violations would be included and excluded from the process. For example,
under its base program, Stationary Sources Air enforcement would screen all SNCs under the
Compliance Monitoring Strategy. The OPTS enforcement program has identified areas for review
which could include AHERA violations by contractors, PCB storage and disposal violations, and
FIFRA violations at wood preserving establishments.
In addition, all violations stemming from targeted initiatives and potential overfilings of
ongoing or completed State actions should be subject to screening. For example, an ozone initiative
would screen all VOC sources in nonattainment areas, while an air toxics initiative would screen all
violations involving identified high risk pollutants not subject to Federal regulations, or all sources
within a specific industry category which is heavily represented among high risk facilities (e.g.,
ethylene oxide sterilizers). Several Regional NPDES programs have instituted screening for
localized compliance problems such as stripper wells and coal mines (Region 4) and fish processors
and placer mines (Region 10).
The Agency's new management system (STARS) provides for narrative reports which can
discuss the resource aspects of multi-media and/or civil judicial or criminal case development and
Regions can explain the results of targeting and screening efforts. The Office of Enforcement will be
using these reports as a vehicle for ensuring that the Regions undertake appropriate targeting and
screening. Some current measures of enforcement activity, e.g., SNC definitions, may need to be
refined. "Timely and appropriate" enforcement response may also be adversely affected at first.
However, "T&A" is a goal, not a rigid requirement, and will be supplemented by qualitative
discussions of program success. The challenge will be to define the environmental benefits being
sought in advance and then to communicate the results achieved. The Headquarters compliance
programs and the Office of Enforcement may need to provide help for the Regions to carry out these
types of cases (e.g.. by providing technical assistance or staff support). There may also be some
classes of cases where a national role in coordination is appropriate (e.g., for violations involving
multi-State companies).
IV. Improving EPA Relationships with Other Units of Government
A. State/Federal Relationships
The States, which conduct the bulk of all environmental inspections under the delegations
process, are a fundamental part of the entire enforcement effort. During the past few years, the
Agency has made significant progress in communicating with the States and formalizing the
relationship through the implementation of the Policy Framework, which defines the oversight
criteria for evaluating "good" performance, and the negotiation of the annual Region/State
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Agreements which commit the Regions and States to specific enforcement activity. Through the
State environmental enforcement organizations, EPA is encouraging Federal/State information
exchange and cooperation in environmental enforcement efforts. The organizations, which meet
periodically to share ideas and experiences, are an effective network that can be a major resource for
building a truly national environmental enforcement program.
Despite this success, there is still room for improvement in the State/Federal relationship.
It is important that the Agency review its oversight function to assure it is as constructive as possible.
It is also important that the Agency work with the States in explaining and refining this strategy.
This approach requires the mutual understanding that the appropriate State/Federal relationship
(£4*., degree of oversight or delegation) may vary over time and between individual programs.
This will require more emphasis on delivering to States the generic and program-specific
training materials developed pursuant to the Agency's basic inspector training and development
program (EPA Order 3500.1) At the same time, the Regions and States will need to make better use of
State-by-State data (both quantitative and qualitative) to make more refined evaluations of the
overall effectiveness of their individual States' enforcement programs and help facilitate
identification of areas for program improvement.
The "Enforcement for the 1990's Project" is analyzing the State/Federal relationship and the
approach to oversight. The strategic planning process will define any adjustments which should be
phased in by the Regions and States in the FY 1991-95 timeframe. The annual State/EPA
Enforcement Agreements process will take on added significance as the formal mechanism for working
with the States and localities and defining new responsibilities and roles. There should be more
State involvement in EPA strategic planning, e.g., through a close consultation in the process to
identify enforcement targeting and initiatives. Minimum guidelines, standards, and capabilities for
an acceptable State program could be developed that address such aspects as enforcement procedures
(including the unique enforcement problems of, and full range of enforcement tools available to, a
State), resource levels, and State training.
V. Creative Use of Enforcement Authorities
A. Pollution Prevention/Waste Minimization
A strong enforcement program is essential to create a climate in which companies decide to
prevent pollution and minimize waste. Regulatory requirements on emissions and disposal have
increased and the potential economic liabilities for poor practices have expanded enormously.
Assuring compliance with stringent regulatory requirements, and making sure that those responsible
bear the costs of clean-up, creates an incentive for companies to find better ways to reduce and manage
their wastes. This is the primary role of enforcement in promoting pollution prevention.
There are also greater opportunities to directly promote pollution prevention through specific
enforcement actions taken against individual noncompliers. First, EPA has had a policy on including
environmental auditing provisions in enforcement settlements since 1987. These provisions have
proved successful in identifying root causes of noncompliance (improper management practices as well
as technical inadequacies) and preventing future environmental harm. The Regions should expand
the use of environmental auditing provisions when dealing with recurring or continuing violations or
where a respondent is likely to have similar violations at more than one facility. A violator's
commitment to conduct an audit may, in certain circumstances, be a basis for reduced penalties.
The Agency will also develop policy and criteria on the inclusion of additional pollution
prevention conditions in Agency settlements. When conducting negotiations, the Agency enforcement
team shall consider whether it is technically and economically feasible and appropriate for the
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respondent to correct the violation through the implementation of media-specific or multi-media
source reduction activities (e.g., by reducing the source or scope of emissions or discharge by having
the respondent switch to a different industrial process or by chemical substitution).
Similarly, settlements should be used to encourage pollution prevention conditions which,
although not related to the original cause of noncompliance, provide environmental benefits (e.g., a
commitment to phase out the use of a specific pollutant over a specified period of time).
While encouraging such settlement conditions where appropriate, the Agency will also need
to be mindful that the ultimate goal of an enforcement action is to resolve the violation as
expeditiously as possible, and that respondents will not be permitted to offer the prospects of
pollution prevention activities as a means for dragging out negotiations and delaying the resolution of
the case.
VI. Expansion of Enfnrrpmpnf Communications Efforts
A. Outreach
Communications plays a vital role in enforcement. Publicizing the enforcement actions taken
against violators magnifies the impact of the environmental gains achieved through those actions.
The goal of an Agency communications policy is not to "pat itself on the back," but to effectively and
accurately describe the enforcement program's role in protecting the environment to promote
compliance and deter violators. A strong enforcement program is also necessary to the credibility of
EPA and, as the Agency implements this enhanced enforcemenfapproach over the next five years, it
is essential that it develop an overall strategy to communicate with the public, the Congress, the
media, and the regulated community about its total enforcement program. The two components of a
strategy are to develop more explanatory measures of enforcement impact and communicate the
information in an accurate and straight-forward way. The Agency will consider ways to interact
more effectively with citizens groups. Enhanced enforcement will require more effective ways of
communicating both numbers and the qualitative impact of the program. Aggregate "numbers," while
significant, will no longer be sufficient. Communications also must include the Headquarters role in
communicating to the Regions on important developments, (e.g., new regulations, policies, and
decisions) in a clear, concise, and timely way.
B. Describing the Effects of Enforcement
During the next five years, as the data bases provide more sophisticated information, the
programs will augment traditional activity levels and SNC definitions with other quantitative and
qualitative measures of performance. Examples include overall compliance rates for a program as
wel1 as compliance rates within targeted sectors of that program; the injunctive value of settlements;
the deterrent impact of large penalties; precedent-setting activity; the use of enforcement to promote
pollution prevention and waste reduction and minimization goals, etc.
This will require "up front" screening, planning and case selection to define measures of
"success" and baseline data in advance, not after the fact. Each Region will develop its own plan
which describes in advance the impact it expects from its enforcement activities, both the "base"
program and targeting and special initiatives.
This approach recognizes that there is no single measure of quality and impact of the
Agency's enforcement component. It also recognizes that the measurement and evaluation of some of
these components can only be developed through an iterative process. The Agency will develop a
greater research capability to design and evaluate compliance and enforcement programs that work,
focusing on piloting innovative approaches, evaluating "how/why" people comply with
environmental laws, identifying State approaches that might be useful at the Federal level, etc.
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The Agency's annual Enforcement Accomplishments Report will reflect the new approach to
communicating the effect as well as the numbers of enforcement actions. Regions will also publish
their own annual report, which will complement the national one (i.ev discuss both "numbers" and
the environmental contribution/deterrence effect of its enforcement program) and include a
description of Regional and State activity.
the Infrasfauchrre/Training
A. Training Enforcement Personnel
Effective enforcement of environmental laws and regulations requires highly qualified legal
and technical personnel. In FY 1988, the Agency took the important step of establishing a formal
inspector training and development program (EPA Order 3500.1) which took effect in FY 1989. This
program recognized that compliance inspectors were the critical first step in the enforcement process.
The Agency has also developed a training program for new attorneys.
These training programs will continue to grow. Inspectors must continue to be able to identify
and document more difficult violations (including ones that could readily be referred to other media),
while attorneys must become aware of all appropriate enforcement authorities, including the greater
use of "imminent hazard" or other emergency authorities to address high risk violations.
While some separate training for "lawyers" and "inspectors" is appropriate, the Agency
should not artificially segment its training by job categories. AU enforcement personnel should also
receive appropriate joint training to increase their understanding of - and role in - the overall
enforcement process. Training programs provided by the State environmental enforcement
organizations provide a good model. They afford training to the regulatory, investigative, and
judicial components of State and local governments. This approach encourages team building at all
levels.
Over the next five years, the Agency intends to develop a comprehensive enforcement
training capability in order to train inspectors, technical case development officers, investigators and
prosecutors in all phases of enforcement. The goals will be to provide introductory training with a
general overall multi-media, multi-disciplinary perspective to enforcement, and to work with each
program office to provide additional specific legal and technical training programs to ensure that
each person has the working knowledge and the skills to do the job in his/her assigned statutory area
and discipline.
For example, the Superfund Program currently has the OSWER Superfund Academy for
technical staff and the OE Superfund Attorney Training Institute. The Agency would develop an
umbrella training mechanism that would provide through the basic course an introduction to other
statutes, basic skills in case development and resolution, and development of the attorney/technical
team, as well as establish additional multi-disciplinary courses to develop the cross-cutting
enforcement skills not covered by either the current Superfund attorney or technical training
programs. The current criminal investigative training program, located at FLETC, which includes an
intensive orientation course for regulatory personnel, already embodies a multi-media,
multi-disciplinary approach to training.
Design of the basic multi-media enforcement program has begun. The Office of Enforcement
will work with the programs to develop a plan for multi-disciplinary, multi-media enforcement
training which will identify their respective roles in. developing and staffing the multi-media and
specialized program courses and identify the short-term and long-term funding options for developing
this training capability. This is an area where the Agency may have to consider a larger investment
of resources if the full potential of a cross-functional enforcement training capability is to be realized.
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Training loses its efficacy, however, if people do not stay on the job long enough to use their
skills to address environmental problems. Turnover remains a serious problem in both the Regions and
States, and the Agency needs to develop additional incentives to be able to recruit and retain
qualified staff. The Agency's training and development efforts should be designed to promote and
retain career environmental enforcement professionals and reward sustained performance. The Office
of Criminal Investigations will continue to make a concerted effort to recruit experienced program
personnel who meet the qualifications for selection as criminal investigators. This effort reflects the
belief that a balanced "mix" of people with program and investigative backgrounds will help to
integrate more fully the criminal enforcement component with the programs and ultimately produce
greater environmental benefits. Although States are not formally covered by EPA Order 3500.1, the
Agency also will continue to provide training materials and opportunities to State enforcement
personnel.
In addition, we need to have a better understanding of what kinds of expertise and skills we
are likely to need in the future and assure that we are taking steps to recruit and develop staff to meet
those needs. Some specific ideas include law school volunteer programs and attorney exchange
programs with the Regions and DOJ.
B. Compliance Research and Analysis
EPA and the States have tried different enforcement philosophies and approaches over the
last two decades, and new approaches to the use of inspection and enforcement authorities will
continue to emerge. Little systematic research or program evaluation has been conducted to help
understand what techniques are effective under what circumstances, especially if the States use
different tools and sanctions than the Agency would to resolve specific violations. This makes
constructive oversight difficult.
The Agency needs to develop a compliance research and analytic capability to help evaluate
the factors behind compliance and noncompliance with environmental laws. Such a capability would
help the Agency evaluate its own enforcement efforts - as well as those of the States - more
effectively. It also would enable the programs and Regions to test specific innovations and improve
the overall ability to design programs that work. An essential component would be a
technology/management information transfer capability that would develop and disseminate
material useful to EPA and State enforcement program officials.
C: STRATEGY TMP¥FTUENTATIQN
I. Resource ChmVps
As part of the implementation process, the Agency needs to decide upon the amount of
resources it will invest in the following areas:
data linkage to provide the tools for a targeted single-media and multi-media capability.
Based on the methodology developed by the multi-office Data Linkage Workgroup, OARM
has developed initial cost estimates for three implementation options contained in the
proposed EPA Facility ID standard. While all three options have some drawbacks because
of funding constraints and the extended amount of time needed for full implementation,
Option H received the most support from the Enforcement Management Council. This option
would link the priority data systems agreed upon (HWDMS/RCRIS, TRIS, CERCLIS
Docket/CDETS, CDS/AIRS, FFIS, PCS Majors, FATES) by December 1990, as well as
provide the Dun and Bradstreet corporate capability (through FACTS) by December 1991,
but pending shortfalls will require reprogramming of resources.
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Based on preliminary estimates, additional shortfalls in program offices are expected
without reprogramming. However, other approaches are being considered to reduce the cost
and implementation schedule while still meeting the data linkage requirements. Use of the
System Modernization Fund to support some of these costs will also be considered.
OIRM is committed to pursue the most cost-effective alternative without compromising data
linkage systems operations. OIRM is equally committed to coordinate with the program
offices on the selection and implementation of the best alternative;
training, to enhance both technical and legal expertise and provide a multi-media,
multi-disciplinary perspective on enforcement. Additional resources, particularly travel
dollars and ceiling, as well as contractor support funds, will be needed;
rpsparph capability to evaluate traditional and innovative compliance and enforcement
tools and approaches and to develop more refined measures of the impact of the enforcement
program on environmental progress. Again, staffing and contract resources are needed; and,
yPdCTal facilitipg compliance staffing to assure that the new Federal facilities compliance
effort within the Office of Enforcement will truly focus on compliance issues for all media.
Initially, this will consolidate the existing Federal facilities compliance office within
OWPE comparable functions within other media programs, and the Federal facilities
compliance unit within OFA into a single integrated multi-media Federal facilities
compliance capability. Given that the funding for Federal facilities compliance activities,
especially at the Regional level, will be largely from Superfund, non-Superfund resources
will be needed to make it a true multi-media effort.
While decisions about these basic choices are being made, specific elements of the plan will continue
to be refined as a result of continuing discussions with the programs, Regions, and States during the rest of
the fiscal year.
II. Near-Term Implementation
Each program and Region will make sure that its own four-year strategic plan is consistent with the
final enforcement plan and addresses all of its major components. The enforcement plan will be evaluated
and updated annually with the involvement of the programs, Regions, and States. As this process is
institutionalized, the enforcement plan will be used by the Administrator and Deputy Administrator to
develop annual operating plans and budgets.
In the short term, the Headquarters emphasis will be on developing the policies, guidance,
information systems and management procedures necessary to begin implementing (or expand current
implementation) of the enforcement capabilities which the plan described in detail. Building upon the
Regional .Enforcement Pilots currently under development, the FY 1991 Operating Year Guidance will include
language which encourages Regions (and provides them with the flexibility) to continue targeting resources
to address generic compliance problems, i.e., geographic, industry-wide, pollutant-specific, etc., either as
part of a nationally or Regionally identified initiative.
The Regions will also use the FY 1991 Agreements Process to review strategies for the adoption of
the enhanced enforcement approach with their States, although the FY 1991 Agreements will not seek
specific State commitments which would be needed to implement the new approach described in the Plan.
Specific commitments will be a formal part of the State/EPA Agreements negotiating process in FY 1992. The
Regions also will assure the collection of any additional information needed to oversee State performance.
The Regions should also inform the national programs of any additional or expanded State training
or information needs necessary to conduct their enforcement programs.
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PART TWO:
PROGRAM-SPECIFIC COMPONENTS
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The Air Stationary Source Enforcement Program
I. The Current Enforcement Program
Background: The air compliance program is responsible for ensuring that stationary sources of air
pollution comply with the requirements of the Clean Air Act (for example, State Implementation
Plans, New Source Review requirements, New Source Performance Standards, and the National
Emission Standards for Hazardous Air Pollutants). The States have primary responsibility in
monitoring the compliance of regulated sources and in initiating enforcement actions against sources.
EPA assists state activity by providing program guidance, oversight and technical support. In
addition, EPA uses its grant authority under 105 of the Clean Air Act to negotiate with air pollution
control agencies over respective priorities and expectations.
In recent years, the Federal air enforcement program has concentrated on four major objectives:
1)
2)
to enhance the compliance monitoring and enforcement capabilities of the States;
to ensure program credibility and to bolster State enforcement efforts by conducting selective
Federal enforcement;
3) to require continuous compliance of major stationary sources; and
4) to focus compliance and enforcement efforts on the most significant air quality problems, such
as ozone and particulate matter (PM10) nonattainment, SO2, air toxics, and NESHAPS,
including asbestos demolition and renovation.
Guided by these objectives, the. program establishes priorities for inspections by integrating the
inspection frequency guidance together with the definition of significant violators. This prioritization
scheme targets major sources of pollution and focuses inspections against violations of new source (both
NSR and NSPS) requirements of SIP violations in nonattainment areas, and of the NESHAPs.
In the asbestos NESHAP area, State and Federal agencies receive some 50,000 notices of
demolition and renovation projects annually. EPA adopted the asbestos NESHAP strategy (03/31/88)
to deploy limited resources. The data system, using compliance history information, targets contractors
performing the jobs.
Recent Initiatives: The air enforcement offices (SSCD and OE-Air) have fashioned several
special initiatives. One example is the compliance monitoring strategy (CMS, 03/31/88), used to guide
Regions in negotiating inspection plans with their States. CMS establishes a process to determine
which sources should be inspected during an operating year, the extent of the State commitment and the
distribution of resources needed to facilitate the process. Included in CMS is a computer algorithm
which considers a number of criteria to guide inspections, including the size of the violator, the
category of pollutant, compliance history of the source, control and process vulnerability, and impact on
air quality. EPA has encouraged States to use the CMS to prioritize inspection resources.
In addition, in order to maximize the full deterrent effect of enforcement against owners and
operators of asbestos demolition and/or renovation facilities, EPA planned and coordinated an asbestos
enforcement initiative. On August 22, 1989, thirteen lawsuits were filed in Federal courts naming 34
defendants, which garnered a large amount of public attention and press.
The Program also participated extensively in a Headquarters-managed negotiation involving
several automobile coating facilities. Its assistance helped to coordinate litigation at facilities
located in different Regions but belonging to the same company. It is actively involved in the Air Toxics
initiative, discussed more fully below, which will stimulate pollution prevention by encouraging
control of unregulated air toxics emissions when negotiating with violators under the environmental
requirements.
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H. The Enforcement Program Over the Next Five Years
Summary: Meeting the Agency's four objectives has been complicated by long-term problems such
as ozone and PM10 nonattainment, as well as by emerging air quality problems such as acid deposition,
global warming and air toxics. Future program guidance must anticipate the fact that the universe of
sources has expanded and that the program has become increasingly more complex. Present guidance
needs to be revisited to address these new issues. The program must increasingly focus on ensuring the
compliance of tens of thousands of small sources, such as dry cleaners, gas stations and wood stoves, to
achieve ambient goals.
Cognizant of the need to balance continuing enforcement against the more traditional pollution
sources while at the same time pursuing the emerging air quality problems, the air program will revise
guidance for compliance and enforcement. To this end, it has established workgroups to examine and
consider revising, among other things, CMS, the Enforcement Response Plans, the Timely and
Appropriate guidance, the definition of significant violator, and the 105 air compliance grant
negotiation and planning process.
Special Initiatives
Air Toxics: In FY 1991 and beyond, EPA's air toxics initiative will begin by focusing on existing air
regulations and other multi-media authorities. Enforcement addressing violations of applicable SIP
and other Federal regulations controlling criteria pollutants may also reveal unregulated air toxic
emissions at a source. In resolving violations against these sources, EPA will encourage using innovative
pollution prevention methods to control unregulated pollutants by seeking to control the unregulated air
emissions through penalty credits.
In order to identify and target sources of toxic air emissions, EPA can use the Toxics Release;
Inventory (TRI), the Geographical Information System (CIS), and the source and emission data found in
the Aerometric Information Retrieval System (AIRS), as well as the other data sources such as
inspection reports. The TRI consists of data on toxics which companies are required to provide to EPA
annually by the Emergency Planning and Communiry-Right-to-Know Act (EPCRA, also known as SARA
Title III).
Realizing that each Region's air toxics emissions sources may differ, Headquarters plans to issue
targeting criteria which will permit the Regions to identify their particular areas of concern. Various
criteria will be considered in the process, including: the area's geographic make up, its attainment
status, and the types of industries represented. After selecting an area of concern, whether geographic
or industrial, the Region may utilize existing methods to allocate resources to inspect these sources.
Ozone; Beginning in FY 1991, the program will augment its base program with a concerted
enforcement initiative directed against contributors to ozone. Because the ozone problem is created by
factors unique to a particular area, each Region will be asked to devote resources to this initiative and
to develop a specific plan to achieve compliance. Certain Regions will identify sources by industry
category; in others, particularly where deficiencies in the current SIP regulations prevent Federal
enforcement, Regions may deploy enforcement resources to assist development of enforceable
regulations, and then enforce them.
For those Regions which have identified sources to be inspected, EPA must first examine the SIP
to ensure its enforceability. To assist in this endeavor, the program needs to develop a checklist
tailored to VOC SIP enforceability. The cases that survive this review should be pursued. Assuming
EPA determines that SIPs are enforceable as to a group of sources within a Region, additional criteria to
be considered in targeting will include: the contribution to ozone nonattainment of a particular source or
source category; the potential for reduction of emissions; the history of the source's compliance; its
ability to comply; whether the source is violating more than one statute; and the deterrent value of
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enforcement within the industry. These criteria can help to prioritize the Federal workload identified
under Timely and Appropriate guidance, which defines when EPA should move to enforce in cases
where a State government had the initial enforcement lead.
Each Region should set up a screening process that enables its air division and the Office of
Regional Counsel (ORC) to make a joint decision on the appropriate enforcement response to violations
identified by the Region. This will afford the air division an opportunity to assure that the ORC is
deploying its resources in a manner that supports the program goals. It will also give the ORC a chance
to voice legal concerns about a particular action before the air division invests significant resources to
developing a case.
Ideally, the Region should screen all sources identified as being in violation. If it is not
practicable to screen all violators, the Region should use screening criteria designed to best support the
program goals. For example, to support the base program, the Region would screen all significant
violators targeted by the Compliance Monitoring Strategy. To support an ozone initiative, the Region
would screen all VOC sources in nonattainment areas. To support an air toxics initiative, the Region
would screen all violations involving pollutants not subject to Federal regulations which have been
identified as posing high risks (e.g., butadiene), or perhaps all sources within an industry category
which is heavily represented among high risk facilities (e.g., ethylene oxide sterilizers).
Headquarters is currently reexamining the management systems which drive the air program.
For example, the definition of a significant violator may be too broad and could be tailored
more closely to facilitate the screening process. A "person-to-person" screening process would be
preferable to a "paper" process. A meeting between the appropriate program and ORC people would
facilitate a more efficient sharing of ideas than merely exchanging memoranda.
HI. The Impact of the Air Enforcement Program
Current Program: The base program has traditionally relied on achieving compliance goals
through penalties and injunctive relief. For VOC sources, the program requires reformulation of
coatings, a form of pollution prevention, and/or add-on pollution control equipment to reduce emissions.
For asbestos NESHAP cases, where the demolition or renovation project may already be completed by
the time the consent decree is finalized, the program requires that the defendants restructure their
business practices for adequate notifications and to require asbestos training programs. Recognizing the
need for more innovative methods for ensuring environmental compliance, it recently issued guidance
encouraging the use of environmental auditing in consent decrees (Guidance on Inclusion of
Environmental Auditing Provisions in Clean Air Act Settlements, January 27,1989).
Future Program: The ozone initiative will help make the transition from enforcement activity
under the current Clean Air Act to the program under the reauthorized statute, which is expected to
continue to focus attention on ozone nonattainment, among other things. EPA expects to enhance
enforcement under the new Act, particularly with regard to Title IV. Following the amended Act, EPA
will take steps to promulgate new regulations and implement new programs. Until such time, the air
program will continue to rely on the base program.
The air toxics initiative will stimulate pollution prevention by encouraging control of unregulated
air toxics emissions when negotiating with violators of criteria pollutant standards.
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The Mobile Source Enforcement Program
I. The Current Enforcement Program
The mobile source program is a nationwide headquarters-based program through the
Assistant Administrator for Air and Radiation, rather than through OE and the Regions. As such,
OMS sets the policies, writes the regulations and enforces the program. Because of its unusual
structure, its mix of legal and technical personnel and its emphasis on ensuring that its regulations are
enforceable by heavily involving enforcement personnel in regulation development, OMS has, and
will continue to have, an effective enforcement program. OMS enforcement is carried out by the Field
Operations and Support Division (FOSD), and the Manufacturers Operations Division (MOD).
A. FOSD
FOSD has field offices located in Washington, DC and Lakewood, Colorado. It relies
heavily on contractors for inspection activities. It resolves over 95% of its cases through an informal
administrative Notice of Violation program, and refers the remainder of its cases directly to the
Department of Justice. It tends to rank high within the Agency in the number of violations
prosecuted, total penalties proposed and collected, and the percentage of cases settled with
penalties.
FOSD at present is responsible for enforcement of motor vehicle fuel and motor vehicle
emission control anti-tampering and warranty requirements. Its enforcement sections are staffed with
both attorneys and non-attorney professionals, and considerable use is made of contract inspectors.
Compliance with the unleaded gasoline quality rules, the volatility rules (which were implemented
in 1989), and other rules concerning gasoline additives is determined through thousands of inspections
which are conducted annually at gasoline retail outlets, and gasoline terminals and other facilities
upstream from retailers. In addition, compliance with rules governing the content of lead in leaded
gasoline (lead phasedown) is determined through both self-reporting and through an extensive
refinery audit program. The office also determines compliance with the Fuel and Fuel Additive
Registration Program. In FY 1989, approximately 162 notices of violation were issued for violations of
the motor vehicle fuel requirements, with proposed penalties of over $8.5 million. Settled fuels cases
accounted for $3.7 million in civil penalties and an additional $2.2 million was expended by
respondents for credit-type activities.
FOSD also enforces the anti-tampering prohibition under which regulated persons, such as
motor vehicle repair facilities and fleet operators, are prohibited from tampering with motor
vehicle emission control devices or systems. The office attempts to follow up on all legitimate
complaints of tampering, and conducts inspections annually. FOSD coordinates inspections and
enforcement with State environmental agencies in States which have appropriate anti-tampering
laws and the will to pursue violations. It defers to State enforcement if the penalties obtained by
State enforcement actions create the appropriate deterrence. Over the years, the most frequent types
of tampering have included such violations as removing the catalytic converter and replacing it with
a straight pipe, enlarging the fuel inlet restrictor, and disabling the air pump or EGR. More recently,
the focus of tampering has changed. Last year alone, 200 notices of violation were issued for improper
installation of aftermarket catalytic converters. In addition, investigations are being conducted for
new technology aftermarket components, such as computer chips, which have the effect of disabling
emission controls. In the past year FOSD also has focused on violations of the motor vehicle emission
control warranty requirements, in order to increase the effectiveness of inspection/maintenance
programs.
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B.MOD
The division has personnel located in Washington, D.C., and Ann Arbor, Michigan. A
dedicated contractor laboratory in Springfield, Virginia provides vehicle emission testing support
that supplements testing conducted in Ann Arbor. In addition, a joint testing and enforcement program
is presently underway with the Colorado Health Department in Denver, Colorado to determine if
vehicles at high altitude comply with emission standards or whether EPA should require their
recall and repair pursuant to the Clean Air Act.
MOD performs compliance and enforcement activities under Title II of the Act, particularly
as they relate to the motor vehicle industry. MOD is also responsible for developing and
implementing regulations which are related to its program and enforcement duties and for providing
recommendations to the Administrator regarding the waivers of Federal pre-exemption which
permit California to conduct a separate mobile source regulatory program.
In the furtherance of these responsibilities, the division investigates violations of Title II
and initiates appropriate enforcement actions including resolution through settlement agreements,
administrative hearings and referrals to the Department of Justice. Manufacturers are required to
test new motor vehicles to determine if they comply with emission requirements and to cease
production if they do not comply. The division tests samples of in-use vehicles and trucks to assess
whether properly maintained vehicles meet standards and requires the manufacturer to recall and
repair vehicle classes that are not in compliance. If a manufacturer challenges the recall order, an
administrative hearing is scheduled to resolve the issue with division engineers and attorneys
representing the Agency.
About one-half of the division resources are devoted to the Recall program. Classes of cars
and light trucks are targeted for testing by reviewing and assessing criteria that prioritize suspected
non-complying classes. Such information includes manufacturers' testing data from prototype and new
vehicles, information from State emission inspection programs, program assessment of the classes'
emission control technology, and previous EPA results from similar classes made by the same
manufacturer.
A small sample of cars from each suspect class is tested in a screening program and, if
substantial non-compliance is found, larger samples of the class are subject to a full confirmatory test
protocol. Manufacturers' representatives and EPA engineers observe all testing. If the data
demonstrate that the class exceeds emission standards, the manufacturer is required to recall and
repair the cars without charge to the owners. Manufacturers may challenge this determination in an
administrative hearing. Almost five million vehicles were recalled in calendar year 1989;
historically, thirty to thirty-five percent of each model year's production is recalled.
Two administrative hearings were terminated in 1988 when the manufacturers withdrew
their challenge to recall orders. In both cases discovery was substantially completed before the
manufacturers reassessed their positions and agreed to comply with the order.
The Selective Enforcement Audit (SEA) program requires the manufacturer of new vehicles or
heavy-duty engines to test a specified class under EPA supervision to assess compliance with emission
standards. As the failure to pass an audit causes the interruption of production when the certificate
of a class is suspended, manufacturers conduct substantial voluntary test programs to identify and
repair marginal classes before they are audited by EPA. (Manufacturers tested almost twenty-five
thousand cars last year compared to about two hundred that the Agency required to have tested under
SEA order.) Nevertheless, a diesel truck engine certificate was suspended when the class failed its
audit.
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MOD'S imports program regulates the introduction into the U.S. of cars not originally
intended for sale in this country and, therefore, not manufactured to be in compliance with U.S.
emission standards. These vehicles are often purchased by armed forces personnel or tourists abroad
and were produced to the standards of the country of origin. Under a recently revised program, most of
these cars must be imported through companies which possess current certificates of conformity.
These certificate holders are responsible for modifying the vehicles to bring them into conformity
with U.S. emission requirements. The vehicles must be tested to demonstrate compliance and the
certifier is subject to enforcement oversight. The revised program began in mid-1988 and several
enforcement actions are now pending.
II. The Enforcement Program Over The Next Five Years
A.FOSD
Over the next five years, mobile source enforcement will reach into new areas. It will still be
enforcing current programs, but it anticipates that lead phaseclown, lead contamination, and many
present forms of tampering will diminish. In 1990, the gasoline volatility program will probably
result in VOC reductions which are similar to reductions achieved in 1989. Beginning in 1991, it will
begin to enforce for heavy-duty truck tampering. Beginning in 1993, it will be implementing and
enforcing rules concerning the quality, particularly the sulfur content, of diesel fuel.
Volatility enforcement will be increased, particularly with the implementation of the
tighter standard that is expected to be in effect for the 1992 season. The program is just beginning to
evaluate the potential enforcement impact if alternative fuels provisions are enacted as in the
President's bill; it expects that beginning in 1995, fuel enforcement will be far more complex than at
present. With respect to the Fuel and Fuel Additive Registration Program, the program has begun
this year to test fuel additives to determine the accuracy of registration. The program will be
expanded over the next four years and will eventually include the evaluation of the health effects of
fuels and fuel additives to determine if registration is appropriate. A regulatory process has just
begun in this area.
Enforcement targeting is applied in a number of ways. For some programs, such as gasoline
station inspections and random tampering inspections, resources are focused on areas of the country
which are non-attainment for motor vehicle-caused pollutants. Inspections for compliance with the
volatility requirements are focused on geographic areas and time periods most likely to result in
documented violations. For example, inspections focus on the time immediately before and after a
change in the standard, when the non-complying product is more likely to be in the distribution
system. Complaints of ongoing violations which are made by members of the regulated industry are
also given a high priority, in order to encourage compliance and minimize the perception that
violators obtain a competitive advantage over companies which do not violate.
Enforcement case screening is simplified by the fact the program is conducted out of
Headquarters. The only potential for criminal violations generally arises from intentional filing of
false reports. All reports that have erroneous information are reviewed within the division;
instances of apparent intentional misfiling are informally referred to the Office of Criminal
Investigations. Generally, parallel civil proceedings are considered even where criminal cases are
referred.
B.MOD
The emphasis over the next five years will reflect the changing requirements associated with
the motor vehicle industry, including those which will occur under the authority of the present Act
and those imposed by amendments to the Act. For instance, in 1984 and 1985 standards became more
stringent for light-duty trucks and manufacturers' responsibility for the emissions of these trucks was
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increased from a useful life of five years or 50,000 miles to 11 years or 120,000 miles. In 1990, average
mileage of the earliest of these trucks will exceed 60,000 miles. The Recall program will target these
truck classes for testing to ascertain whether manufacturers have installed emission control systems
with durability which is consistent with the longer useful life.
The emission standards for heavy-duty engines become more stringent for oxides of nitrogen
and particulate matter in 1990, 1991 and' 1994. The SEA program will shift some emphasis from
passenger cars to these heavy engines to determine if new engines are in compliance at the time they
are produced. After these engines have been installed in trucks and accumulated in-use mileage, the
Recall program will test samples from suspect classes to assess the emissions deterioration and decide
if recall is appropriate.
The proposed Clean Air Act Amendments are likely to increase the stringency of emission
standards for passenger cars and double the time/mileage for which manufactures may be responsible
for emissions. The SEA and Recall programs will respond to these new requirements to determine if
manufacturers are fulfilling their responsibilities to build cleaner, more durable cars.
III. The Impact of the Mobile Source Enforcement Program
FOSD's enforcement program has demonstrated clear and strong environmental benefits. The
volatility regulations had the effect of reducing VOC emissions by 18% in 1989 as compared with
1988 levels. A public meeting was held to discuss the upcoming enforcement of the volatility
regulation in April, 1989, at which the program emphasized the scope of its enforcement program,
and the lack of tolerance it would have towards violations. As a result, the average sample was .8
psi below the applicable standard. Similarly, in numerous lead phasedown cases the program
secured, as a part of settlement, the purchase and retirement of lead rights to cancel the lead
illegally used by the violator; this resulted in measurable reductions in the amount of airborne lead.
A credible, comprehensive and aggressive enforcement program encourages voluntary
compliance by a responsible industry. If the industry believes that non-compliance will be identified
and remedial action will be certain and costly, it will seek to avoid this outcome by improving the
design and durability of the cars and trucks it produces. The substantial amount of voluntary testing
performed by manufacturers to prevent non-cornpliance in an SEA audit and the recently increased
voluntary in-use testing by manufacturers of their fleet to reduce the number of costly recalls reflect
the impact which successful enforcement can achieve.
However, voluntary compliance by an industry will not be effective if not nurtured. If it is to
be optimized, there must be significant Agency attention directed at communicating Agency goals.
Manufacturers need to be aware of Agency views of industry practices which may or may not be
interpreted by the industry as violations. The industry needs to be aware of Federal priorities so that
it will allocate its violation prevention monies in the most effective manner.
This area of communication to enhance voluntary compliance must be emphasized. The
program must develop plans, establish priorities, and engage in discussion with industry to clarify
and explain objectives and prevent misperception. An important aspect of the strategy is to commit
the resources and effort to strengthen and expand the area of voluntary compliance now that
aggressive enforcement actions have the industiy's attention. The benefits of increased compliance
for a relatively low resource expenditure will justify this effort.
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The NPDES Enforcement Program
I. The Current Enforcement Program
The Water-NPDES Enforcement Program is by now well-established. Since passage of the
Clean Water Act in 1972, this program has enforced NPDES permit limits for municipal and
non-municipal facilities which discharge into the waters of the United States. In the area of
municipal compliance, the program has conducted an enforcement initiative under the National
Municipal Policy (NMP) to ensure compliance with statutory requirements by Publicly Owned
Treatment Works (POTWs) no later than July 1,1988. As a result, as of January 1990,89% of all major
municipals have now completed construction to meet final effluent limits.
Over the past five years OWEP also has taken various steps to attain compliance with the
pretreatment requirements of Section 402 of the Clean Water Act. These efforts have included
technical assistance; direct enforcement against some of the nation's largest Industrial Users (lUs) of
POTWs (including General Motors, Chrysler, and Modine Manufacturing); and a pretreatment
enforcement initiative in 1989 consisting of judicial or administrative penalty actions by the Federal
Government and a number of States against 61 municipalities which failed to comply with
pretreatment program requirements. These 61 actions were announced in a joint press conference by
Attorney General Thornburgh and Administrator Reilly.
The NPDES base program, then, consists of two components, enhanced by special initiatives
where specific problem areas occur: (1) general NPDES permit enforcement, which includes a
requirement that all noncompliance which meets the definition of significant be resolved on a timely
basis or addressed through a formal enforcement action and (2) pretreatment enforcement, which
encompasses the enforcement of pretreatment standards directly against industrial users as well as
the enforcement of pretreatment program requirements against municipalities that have failed to
comply with approved pretreatment programs. This base program utilizes both administrative and
judicial enforcement mechanisms to respond to noncompliance.
Currently, in conjunction with the Administrator's chairmanship of the Chesapeake Bay
Executive Council, OWEP, OE-Water, and the Office of Federal Activities are reviewing with
Region III the status of EPA's enforcement work in the Bay area. It is likely that some special
initiatives will be considered in the near future, including possible enhancement of enforcement
against minor POTWs, actions against Combined Sewer Overflows, and additional activities to
ensure compliance by Federal facilities in the Bay.
II. The Enforcement Program Over The Next Five Years
The Water-NPDES Enforcement Program needs to maintain its policy of timely and
appropriate response to significant violations as well as to target specific problem areas for
improvement. As required activity under the NMP diminishes, in 1991 through 1995 water
enforcement will be emphasizing maintenance of compliance by municipalities and will target
enforcement opportunities through the implementation of a municipal compliance maintenance
strategy. Its purpose is to help ensure continued compliance with permit limits by municipalities and
to prevent noncompliance through an early warning system. By closely following Discharge
Monitoring Reports (DMRs), which municipalities are required to file monthly, and by establishing
criteria for identifying municipalities with potential for losing their physical capability to
maintain compliance, the program hopes to prevent noncompliance. By taking quick action to correct
problems, water enforcement hopes to ensure continued compliance with NPDES permit limits.
A potential geographic initiative commencing in FY 1992 is a joint undertaking of Water
Enforcement and the Office of Marine and Estuarine Protection (OMEP) under the National Estuary
Program to improve the quality of Puget Sound or a similar body of water. This activity would be
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multi-media and multi-tool in its dimensions and would build on experience with the Chesapeake
Bay. Other geographic strategies might include an initiative to address pollution problems in a
"sick" river.
Another targeting opportunity for this timeframe relates to implementation of requirements
for Combined Sewer Overflows (CSO's). This is a new program and an initiative could not begin until
FY 1992 or FY 1993 at the earliest since permit applications have not yet been submitted or permits
written. Unpermitted discharges would be addressed first, followed later by violations of permit
requirements.
As whole effluent and chemical-specific toxics limits are added to NPDES permits, Water
Enforcement may need to target these limits for a special enforcement effort in order to emphasize the
importance of compliance with these limits. Such an initiative is likely to occur in FY 1992 or FY
1993 since many of these limits do not become effective until then.
Water Enforcement will continue to give priority to the enforcement of pretreatment
requirements and may find it necessary to undertake another special effort against municipalities
which are failing to implement their pretreatment programs. This decision will depend on the
relative level of enforcement maintained under the base program. In any case, an initiative is likely
to address industrial users where EPA is the "control authority." Since Regions have not yet
undertaken a systematic attempt to identify all such lUs, it is unlikely that an initiative would occur
before FY 1992. The implementation of many of these targeted activities is uncertain at best,
however, in view of the need to continue to allocate most water enforcement resources for the
foreseeable future on base activities and the pollution prevention program.
OWEP provides, and periodically updates, an Enforcement Response Guide to assist Regions
and approved States in the screening of cases for assessing alternative enforcement options for various
types of violations. This Guide covers all violations -- schedule, reporting and effluent — and is
based on the principle of escalation. Additional written guidance has been provided to the Regions to
assist in the determination as to when a penalty should be assessed administratively rather than
judicially.
Because the Section 402 program imposes self-monitoring requirements, inspection is not the
typical means of detecting violations. With respect to minors, which are not tracked by
Headquarters, Water Enforcement believes that the States should do screening and enforcement as
needed, and that Regions should monitor and enforce against minors only in unusual circumstances.
Special screening techniques may be instituted when a particular compliance problem is
suspected. Regions have tended to implement special screening for industries of unusual concern, based
upon demonstrated environmental impact or the public's perception of impact. Examples include
stripper wells and coal mines (Region 4) and fish processors and placer miners (Region 10). These
localized concerns should be addressed as a matter of Regional prerogative, provided national base
programs and initiatives are adequately covered. The Deputy Regional Administrator should act as
the ultimate screen when issues of the appropriate level of response arise.
III. The Impact of the NPDES Enforcement Program
The environmental impact of the NPDES and pretreatment programs is measured by reduced
levels of contaminants in the waters of the United States, the return of fish and other life forms to
those waters, and the renewed suitability of waters for human recreational use. Some of the targeted
initiatives would enable water quality standards to be met in more areas. One of the targeted
initiatives, CSO's, focuses on an area not currently a part of the existing regulatory scheme. Other
initiatives apply existing authorities in a more concerted manner to maximize environmental
improvement.
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Water Enforcement activities are directed at producing general deterrence through a
systematic way of responding. The pollution prevention program is designed to avoid significant,
sustained noncompliance in municipal systems, which, when it occurs, can take years to remedy. The
tool of "imminent hazard" statutory authority is not significant for Water Enforcement activities,
since the program lacks the statutory authority to impose a ban on hazards.
Finally, the Toxic Release Inventory (TRI) does not function as a warning system for
emergencies in the Water Enforcement program although it is used to provide permitting authorities
with additional data about the number and amount of toxics handled by permittees. Because of the
long history of the enforcement program, developing problems are identified before they are
classified on the TRI. The program plans to use TRI data to identify unpermitted dischargers and to
identify industrial users where EPA or the pretreatment State is the control authority.
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The Safe Drinking Water Enforcement Program
A. PWSS Enforcement Program
I. The Current Enforcement Program
The PWSS program is currently implementing a major initiative to increase the scope and
effectiveness of its enforcement program to increase public water system compliance rates. This
initiative continues the Agency's practice of not using facility size as a basis of enforcement priority.
Thus, enforcement candidates in the drinking water program are often very small (facilities serving
less than 300 people).
Enforcement of the drinking water program was almost nonexistent prior to the 1986 SDWA
amendments, which greatly increased EPA's enforcement authorities. Many State PWSS programs
have historically relied mainly on a cooperative approach to resolve violations. They believe this
approach is often the most expedient way to protect public health and it can be very effective in
many instances where the system is truly trying its best to comply. However, it does not result in
compliance by recalcitrant or unmotivated systems.
The purpose of the PWSS program enforcement strategy is to give the program a strong
enforcement component which would create a suitable balance with the technical assistance
component to bring about maximum compliance with the drinking water regulations.
The PWSS program enforcement initiative strengthens the enforcement component both in
the States and at the Federal level and includes six major parts:
- Following up Regional enforcement program reviews conducted in FY1989;
— Improving compliance data quality, data management and data analysis;
- Redefining significant noncompliance (SNC) to better identify systems posing health
risks;
- Developing nationally consistent violation response escalation guidelines;
- Targeting enforcement actions on exceptions (SNCs not addressed within
"timely and appropriate" criteria);
— Supporting improvements in State program capacity and funding.
H- The Enforcement Program Over The Next Five Years
The SDWA amendments of 1986 mandated EPA to regulate many previously unregulated
contaminants. The Act requires EPA to regulate 83 contaminants by 1992 and 25 additional
contaminants every three years after 1992. In addition, EPA had identified for increased regulatory
coverage a category of noncommunity water systems (those serving transient populations) that have
some characteristics of community water systems because they serve the same population daily.
These major changes in the PWSS program will provide many more opportunities for systems to
violate primary regulations. Violation rates are in fact expected to increase dramatically, as these
regulations become effective in the coming years.
Enforcement in the program will rely on the structure and data systems currently being
developed and will focus on addressing violations of the newly regulated contaminants (in addition
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to existing contaminants) as these regulations become effective. Regions will be expected to enforce
these provisions directly if States are unable to adopt them prior to their effective dates. Regions
will also be expected to provide enforcement in those situations where States have adopted the
regulations but are unwilling or unable to enforce them. Specific emphasis will be placed on
enforcement for the newly regulated contaminants according to the following schedule:
Volatile Organic Chemicals (Now to Dec. 1991), Total Coliform Regulations (Jan. 1991),
Surface Water Treatment Regulations (Jan. 1992), Lead (Feb. 1991), Radionuclides (1992), Phase II
Contaminants (Jan. 1991), Phase V Contaminants (Jan. 1992), Disinfection By Products (1993)
The screening process is being developed as part of the current initiative to strengthen the
structure of the enforcement program. Headquarters is currently developing escalation guidelines to
provide more consistency in State and Federal response to violations. It will seek to obtain the
maximum compliance benefit of both informal violation response through training and technical
assistance and formal enforcement for those systems that do not respond adequately to informal
responses.
Once the national escalation policy is developed, Regions will implement the guidelines
with each of their States in FY 1991. Violation systems not addressed by States will become
candidates for formal Federal enforcement. Enforcement candidates will be prioritized by the
States and Regions in accordance with the PWSS definition of significant noncompliance and the
PWSS compliance strategy. There are currently rare opportunities for multi-media enforcement
actions against public water systems. These opportunities may increase marginally as the
requirements increase for installation of treatment processes that produce by-product waste streams.
The PWSS program screening process relies first on violation data provided by States. The
next step involves discussion of State response plans and from this stand point becomes a "person to
person" process. During this phase, consideration is given to risk, compliance history, population,
strategic value, etc.
III. Impact of the PWSS Enforcement Program
The goal of the program is to ensure all public water systems provide their consumers with
safe drinking water and ensure the public has confidence that the program accomplishes this task.
The PWSS enforcement program strives to maintain compliance and therefore ensure health
protection to consumers served by public water systems that would otherwise not comply with
primary drinking water regulations. Completion of each case is publicized to provide deterrence and
maximize voluntary compliance among the remainder of the regulated community.
EPA has the authority to take immediate action in those situations where contamination of
a source of drinking water may cause imminent and substantial endangerment of public health. It is
a powerful tool, but used infrequently because the authority requires States be provided the first
opportunity to address these situations. If States fail to act, or fail to act sufficiently, the
Administrator may act.
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B. UIC Enforcement Program
I. The Current Enforcement Program
The current UIC Compliance and Enforcement Program stems from the enhanced enforcement
authority provided by Congress in the 1986 Amendments to the Safe Drinking Water Act. The 1986
Amendments provided EPA with authority to administratively assess penalties of up to a maximum
of $125,000 for violations of the SDWA or UIC regulations, order compliance, and raise the level of
civil penalties from $5,000 per day to $25,000 per day. Criminal fine authority was also increased
and imprisonment up to three years provided.
Based on these enhanced authorities, EPA issued its Interim Final UIC Compliance Strategy
in April 1987. This strategy defined the major compliance and enforcement management policies,
guidance, and procedures that would be implemented in a five-year period. Some of the key changes
incorporated in the strategy included:
— SNC definition was revised to include all five well classes, not just Class I and IV, and
the new definition integrated within a revised escalated enforcement response guide;
— Established consistent inspection priorities based on program needs, but allowed Regions
and States flexibility to address specific local problem areas;
— Promoted proactive State/Regional efforts to target members of the regulated community
that require extra assistance to achieve compliance; and
— Emphasized the need for inter and intra-Agency coordination to protect groundwater
resources from contamination.
Since issuance of the 1987 Strategy, the UIC program has made two additions to its general
guidance: (1) UIC Program Guidance #62 was issued in April 1988, detailing appropriate
enforcement actions and procedures for Class V (mainly shallow) wells; and (2) UIC Program
Guidance #64 was issued in February 1989, which revised the existing file review procedures and
substituted a more general Compliance Review procedure to be applied to all well classes.
There has been a steady increase in the number and value of penalties assessed
administratively. In FY 1987, the first year that Regions began issuing administrative orders, EPA
did not assess any penalties. However, administrative penalty assessments increased dramatically
in FY 1988 to $421,890, and increased again in FY 1989 to $675,290. The number of administrative
orders has stabilized at around 110 per year, based largely on resource allocations to the Regions.
At the same time, the Program's Exceptions List, those owners and operators that are listed in SNC
for over 90 days without returning to compliance or having a formal enforcement action taken against
them, has remained relatively low, about 2.5% (1500 wells).
Eighty-eight percent of the exception list universe was addressed in FY 1988. Violations of
mechanical integrity testing requirements, the primary means by which the Program assures that
contaminants are not reaching underground sources of drinking water (USDW), represent about 82
percent of all the violations reported to EPA. More accurate State reporting has caused this number
to increase each year.
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II. The Enforcement Program Over The Next Five Years
The UIC Compliance and Enforcement Program will see its priorities shift in the next five
years to placing greater emphasis on shallow Class V wells that pose the greatest risk to USDWs,
on Class IV wells, and on Class I hazardous waste wells impacted by the RCRA land ban. Reasons
for this change in priority are:
— Revisions to RCRA's Extraction Procedure (EP) toxicity characteristics test will increase
the number of existing Class V shallow injection wells that discharge hazardous waste, and
thus become banned Class V wells. New EP requirements will become effective six months
after promulgation, which is expected in the Spring 1990. The UIC Program is preparing
guidance on this subject which will identify by SIC code key industries that are likely
candidates for further assessment. This guidance will be finalized by the end of June 1990.
- Class V regulation development efforts have just begun and likely will result in specific
technical requirements for certain categories of shallow injection wells that will make
enforcement easier. Regulation option selection is scheduled for the end of FY 1990 with
actual regulation promulgation not expected until 1992.
— Closer coordination with other Agency programs dealing with groundwater protection
will result in the identification of more potential enforcement cases. An MOU with the
Office of Ground Water Protection is already in place and the program expects to conclude a
similar agreement with the UST program in FY 1990.
— Class V Demonstration Projects will develop additional information on shallow injection
well practices that may lead to enforcement cases. They are scheduled to begin in FY 1990,
but most are to run for two years and actual results will not be obtained until FY 1992.
— Closer attention will be placed on Class I wells injecting hazardous wastes to ensure
compliance with land ban requirements that become effective starting in May 1990. Regions
IV, V, VI and VII are actively reviewing land ban petitions.
— An increased number of enforcement actions may be prosecuted as civil judicial actions as a
result of new targeting and resource allocations.
As indicated above, the UIC Program includes all wells under its SNC definition and does
not distinguish between major and minor well types. That is, all violations by owners and operators
are looked at and a determination made whether the violation is significant in terms of its impact
(actual or potential) on USDW contamination. Since the UIC Program is preventive in nature,
significant violations are those which could or actually allow contaminants to enter USDWs. Some
degree of screening to prioritize cases for enforcement purposes can be made, however, based on such
factors as:
— The toxicity, concentration and extent of aquifer contamination;
- The number of persons who rely on the contaminated aquifer for drinking water;
— The availability of alternative drinking water sources; and
- The contaminant contribution of the injection well or wells in relation to other sources of
contamination, e.g., leaking underground storage tanks and Superfund sites.
Information on such factors as injectate characteristics, injection zone depth, overlying
USDW water quality and use is generally available in UIC Program well files. Information related
to the extent of any contamination, other sources of contamination and the number of persons using a
particular USDW may not be included in UIC files and would have to be obtained from other sources.
This suggests the need for a possible cross-media approach to screening and prioritizing cases.
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HI. Impact of trig QIC Enforcement Program
Although the SDWA is 15 years old, the UIC Program is only six years old. The Federal
ability to readily enforce the UIC Program dates back to 1987. Initial EPA UIC enforcement efforts
were designed to support the prohibition of injection without authorization by rule or permit Then
most enforcement actions supported Class II operating requirements, particularly mechanical
integrity. With the increased use of administrative penalties', judicial cases dropped drastically
Now EPA hopes to maintain the same level of administrative actions while establishing a level of
judicial activity similar to that of other EPA programs.
The above listed UIC Program initiatives will have a positive impact on the environment
by reducing the quantity of contaminants directly or indirectly reaching USDWs from shallow Class
V injection wells. The impact of shallow Class V injection wells has become more of a concern since
EPA s 1987 Report to Congress provided the first coordinated study of Class V injection well
practices nationwide. The wide variety and ubiquitous nature of Class V injection well practices has
made it difficult to obtain agreement on a regulatory approach to the problem. However, the Office
of Water issued its Shallow Injection Well Program Strategy in October 1989 and is committed to
implementing an effective program, including enforcement actions which support the Strategy's
objectives. 6/
The enforcement component of the UIC Program has been used in the absence of a specific set
of regulatory requirements in the Class V area for several years and will continue to do so until final
regulations are promulgated. Headquarters has encouraged Regions to take enforcement actions
against shallow Class V wells based on the general prohibition contained in 40 CFR Part 144.12 as
one method of developing case law to support future regulations.
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The Wetlands Enforcement Program
I. The Current Enforcement Program
As of FY 1990, all the Regions have ongoing Section 404 enforcement programs. Nationwide,
the Regions are using the various enforcement mechanisms provided by the Clean Water Act —
administrative compliance orders, administrative penalty orders, and civil and criminal judicial
referrals. Not every Region, however, has had one or more cases in each of these categories. For
example, only five of the Regions have issued final administrative penalty orders. Thus, the
program is in the process of developing a mature enforcement base. This process may not be complete
until FY 1992 or FY 1993.
Most cases involve unpermitted discharges into wetlands, and are not generally identified as
the result of any systematic targeting. Often, the alleged violators are small businesses and
individual landowners.
A Wetlands Enforcement Initiative is being developed for FY 1990 (with completion planned
in the Fall of calendar year 1990). This Initiative is being coordinated by OWP and OE-Water, in
conjunction with DOJ's Environmental Defense Section. OWP anticipates Army Corps of Engineers
participation as well. The Initiative will encompass both administrative and judicial cases.
Although it is anticipated that some larger commercial interests ~ potentially including land
developers and agribusiness (which could affect large wetland areas) - will be included, the Regions
will have wide flexibility with regard to selecting appropriate actions. The Initiative will serve as
a tool for the further development of the basic enforcement program.
With regard to Federal facilities, OWP's goal is to ensure a consistent approach to wetlands
protection among the Federal agencies. Efforts have focused on trying to strengthen the Federal
Executive Order on wetlands protection and on working with the Federal land management agencies
to improve wetlands protection on Federally-owned and managed lands.
II. The Enforcement Program Over The Next Five Years
As the base program attains full maturity in the early years of this period, OWP expects to
develop certain national criteria for setting Regional priority targets. Likely factors may include
quality of wetland, relative threat to the environment, history of compliance, deterrence value and
practicality of enforcement, among others. Flexibility will be maintained for Regional objectives and
initiatives, such as prairie potholes. It is possible that the criteria will be developed and
implemented by the end of FY 1994.
OWP will work towards introducing systematic compliance monitoring into the program
beginning in FY 1993 as a means of ensuring the development of a proactive enforcement program. The
compliance monitoring component alone will require at least one full-time investigator in each
Region, as well as the marshaling of other available surveillance agents, including government
agencies at the Federal, State and local levels, and citizens. Also, technical aids to surveillance,
including remote sensing, aerial photography, and satellite scanning, merit consideration. Although
only Michigan currently has delegated authority for administering the Section 404 program,
delegation is a future strategic objective which could augment the program's compliance monitoring
and litigation capacity. In addition, a small ($1 million) State grant program exists under Section
104 of the CWA, some of which funds could be utilized for State and local demonstration activities.
No particular geographic targeting is planned. Specific Regions, however, are expected to
respond to needs in their localities, such as enforcement by Region III in the Chesapeake Bay area.
Also, there are no national plans for industry targeting. While some clustering by industry may be
useful regionally, wetlands protection by nature is not readily conducive to this kind of targeting.
Another possible target is an examination of compliance with the requirements of Section 404(f),
under which, in part, certain agricultural practices by farmers are exempt from the 404 program.
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It is important to recognize a fundamental difference between 404 enforcement and other EPA
enforcement programs: EPA and the Corps share Section 404 enforcement authority. In deciding
whether to pursue an enforcement action, threshold screening requires consideration of whether the
Corps agrees that there is a violation and what, if any, contact the Corps has had with the alleged
violator. Other screening factors are ad hoc now, and not nationally driven. An important factor is
the environmental significance of and/or threats to the impacted wetlands. In terms of selecting the
appropriate enforcement response, key questions include whether there is a need for removal and/or
restoration and whether the violation was knowing and/or negligent. OWP anticipates the
development of some national criteria in future years, although the criteria will not be mandatory or
inflexible in application.
III. The Impact of the Wetlands Enforcement Program
Section 404 enforcement produces demonstrable environmental results. In many instances, a
Section 404 enforcement action will result in the restoration of an illegally filled wetland or, if that
is not feasible, wetlands creation or enhancement consistent with the goal of no net loss. A primary
goal of Section 404 enforcement is pollution prevention, in the sense that removal of the illegal
discharge and/or restoration of the impacted site prevents continuing pollution of waters of the U.S.
In addition, Section 404 enforcement serves to maintain the overall integrity of the 404 permit
program through deterrence and also promotes public awareness of the importance of wetlands. The
proposed Wetlands Enforcement Initiative is not likely to focus on areas not clearly captured by the
existing regulatory scheme.
In the Section 404 context, enforcement can be more efficient than the regulatory component.
For example, EPA reviews and comments to the Corps on whether it should issue, deny, or modify
permit applications. Regional staff can invest a great deal of time and effort and yet ultimately the
Corps might refuse to follow the EPA comments. In contrast, an enforcement action, in particular an
administrative action, is likely to be more expeditious and, since it is within EPA's control, produce
the programmatic results desired by the Agency. The Corps' regulations contain a "health and
welfare" provision which might be employed in an emergency enforcement action more effectively
than the application of regulatory authorities. Finally, while a hazardous fill of wetlands might
support an action under Section 504 of the CWA, it is, frankly, farfetched.
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The Marine and Estuarine Protection Enforcement Program
I- The Current Enforcement Program
At present, OMEFs enforcement program is in its initial stages. Enforcement activities have
been limited in part due to the absence of comprehensive judicial and administrative enforcement
authorities in the Marine Protection Research and Sanctuaries Act or other marine/coastal waters
legislation. Detection of violations of existing statutory requirements requires field presence in deep
(i.e., ocean) waters and coastal/harbor environs. Current Regional staff and travel fund levels limit
field presence activities. Also, many coastal pollution sources are believed to result from land-based
operations (e.g., Combined Sewer Overflows, nonpoint sources). OMEP efforts directed at these
sources depend upon other EPA programs which have opportunities to enhance their enforcement
efforts specifically in marine and coastal waters.
The total universe of potential violations, consisting of violations of permit conditions and
dumping, is unknown at this time. An analysis of ocean dumping permits by Region II in 1988,
however, revealed a rather high non-compliance rate with permit conditions. Administrative
penalty actions under the MPRSA have been taken in only two Regions, II and DC, and since July 1988,
a total of 19 administrative penalty orders have been issued. All the recent orders have been for
violation of ocean dumping permits (proposed penalties of $1.81 million). In addition, many
enforcement efforts have been confined to planning and policy activities. For example, a report to
Congress entitled Surveillance and Enforcement of Sewage Sludge Pumping will address the use of
"black boxes" and locking mechanisms to prevent illegal dumping.
Some new legislation, resulting from heightened public concern over marine and coastal water
pollution, has improved the enforcement authorities available to the Agency and has increased the
responsibilities for OMEP. Recent statutes include the 1988 Ocean Dumping Ban Act (ODBA), which
amends MPRSA; the Shore Protection Act of 1988; the Water Quality Act of 1987 (amends CWA); the
Marine Plastic Pollution Research and Control Act of 1988; and the Medical Waste Tracking Act of
1988. Responsibilities have been expanded, noticeably in the area of compliance with waste
handling procedures affecting coastal waters.
In August 1989, Region H concluded enforcement agreements with the nine New York and New
Jersey municipalities conducting ocean dumping of sewage sludge. The agreements are in accordance
with those requirements of the ODBA directed at ending dumping of municipal sewage sludge by
December 1991, except as allowed by phase-out agreements.
II. The Enforcement Program Over The Next Five Years
Prospects for near-term substantial expansion of enforcement activity by OMEP are limited by
the general reductions for enforcement initiatives sustained by the program for FY 1991. Subject to
budgetary restraints, projects planned for future development include working with the EPA Steering
Committee on the National Marine and Coastal Policy concerning formulation and implementation of
that policy; implementation and enforcement of the ODBA; support for the enhancement of the civil
and criminal enforcement provisions of the MPRSA; development of an OMEP Strategy and Action
Plan which envisions an enforcement training program for regional program staff and attorneys in
FY 1991; and increased coordination and data sharing with NOAA, the Coast Guard, Corps of
Engineers, and Department of the Interior. Coordination with the Coast Guard, in particular, has
substantial potential due to the legislative mandates recently given to the Coast Guard. In addition,
OMEP will continue to work with other EPA offices which administer programs dealing with coastal
pollution (e.g., OSWER, the Office of Pollution Prevention, and OW offices such as OWEP and
OWP).
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For targeting of cases, OMEP's first priority is to determine the size of the universe of permit
holders and possible violators, and identify those violations which cause the highest level of
environmental harm to sensitive marine/coastal ecosystems. OMEP will also pursue, with other EPA
offices, methods for reviewing compliance histories, and then compare information with the Coast
Guard, Corps and NOAA to target Federal enforcement action. As experience is gained regarding
enforcement against marine and coastal water pollution activities, OMEP may develop criteria for
determining which types of violations merit an enforcement response. Due to the competing uses for
field resources, any criteria potentially developed for Regional office use must incorporate flexibility
allowing Regions to best determine where to target enforcement resources. Regional differences in
pollution sources (e.g., waste transport barges in New York and New Jersey, off-shore production
facilities in the Gulf, dredge spoil disposal in cities with major harbor operations), require such
flexibility for the Regions.
Until more Regions have brought a substantial number of actions, it is premature to begin the
process of establishing criteria for screening violations for strategic value or forum choices.
III. The Impact of the MEP Enforcement Program
Even with a limited docket of administrative enforcement actions, the program is beginning
to build deterrence. Any dumping which is deterred achieves pollution prevention. Total proposed
penalties of $2 million are nationally significant.
The ODBA does not contemplate a substantial regulatory component. Injunctive relief is a
major tool available to the program for fast, efficient action. The Shore Protection Act does,
however, seek to establish a regulatory waste-handling program managed by the Coast Guard and
enforced both by the Coast Guard and EPA.
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The RCRA Enforcement Program
I- The Current En fmoment Program
The Resource Conservation and Recovery Act (RCRA) Enforcement Program exhibits
characteristics of both a mature and immature program. On the one hand, most States are authorized
to administer and enforce the basic RCRA program and are in the process of amending their programs
to administer the Hazardous and Solid Waste Amendments (HSWA), as well. State enforcement is
an integral part of the overall RCRA enforcement program. In addition, the basic inspection,
violation classification, and enforcement response policies are well established. The enforcement
program is fully committed to inspector training on a long term basis. It continues to emphasize the
importance of aggressive violation classification, and the FY 1991 Strategic Tracking and Reporting
System (STARS) measures will emphasize returning facilities to compliance.
On the other hand, most of the Land Disposal Facilities (LDF) universe now either have
permits or are in the process of closing their LDF units. This means efforts at LDFs are shifting from
enforcement of Interim Status standards to the enforcement of permits. Moreover, the focus is
beginning to shift more towards generators [due to land disposal restrictions (LDR) and increased
emphasis on pollution prevention] and treatment and storage facilities ((TSF), due to LDR and the
1992 TSF permit deadline. For FY 1991, the program is proposing to scale back the LDF inspection
policy, consistent with statutory requirements, to reduce the frequency of inspections at facilities
with good compliance histories.
Furthermore, while the program has imposed requirements to conduct studies at over 400
facilities over the last several years, it is now entering a new phase of RCRA corrective actions. This
phase is the imposition and oversight of the actual corrective measures. These can take many years
to implement and cost many millions of dollars. Only four States have obtained authority to
administer the components of the RCRA program, including corrective action, established under
HSWA.
Other upcoming regulations and areas of emphasis that will have major impacts on the scope
of the RCRA enforcement program include: (1) industrial boilers and furnaces regulations; (2)
non-notifier identification for newly regulated waste streams; (3) oversight of the exporting and
importing of hazardous waste; (4) the toxicity characteristic rule; (5) air emissions from TSDs; (6)
inspection of permitted facilities; (7) medical waste; (8) mixed waste; and (9) the emerging Subtitle
D program. While the basic compliance and enforcement techniques and policies apply to most of
these emerging areas, the potential aggregate impact of these additions to the RCRA enforcement
universe, in conjunction with scarce resources, may lead to reassessment of enforcement priorities.
The program will continue to emphasize criminal enforcement. Criminal sentencing is a strong
deterrent to illegal handling of hazardous waste and is one of the most effective enforcement tools.
The program also will continue to emphasize the imposition of stringent penalties, including
penalties to remove the economic benefits of non-compliance, in a civil enforcement program that is
expected to remain heavily weighted toward administrative enforcement at the Federal level.
However, civil judicial enforcement will continue to play an important role in the overall RCRA
enforcement effort for purposes of establishing strong precedents, obtaining greater compliance
through deterrence and undertaking targeted enforcement initiatives. In addition, the enforcement
program will continue to enforce against Federal facilities and to assist the States in their efforts in
this area.
RCRA compliance rates appear to be somewhat lower than other EPA program areas. This
may be due, in part, to several factors, including the complex nature of the program, the
ever-increasing number of regulations and areas of responsibility, ambiguities that remain in key
jurisdictional concepts (e.g. "facility," "tank," or "hazardous waste"), and the nature of parties
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subject to regulation, including many who would prefer to cease operation rather than comply. The
enforcement program will continue to work to improve the compliance rate through its long term
commitment to training, to program evaluation, and increasing emphasis on general deterrence and
returning facilities to compliance.
Finally, the RCRA Implementation Study now underway will explicitly examine the RCRA
Compliance/Enforcement program and make recommendations for improvements. It is anticipated
that recommendations from the Study will help shape the future directions for the RCRA
enforcement program.
II. The Enforcement Program Over The Next Five Years
As a matter of national priorities, the program has tentatively identified the following
areas to target the national RCRA enforcement effort over the 2-3 year period beginning in FY 1991.
The active participation by the States in these initiatives will be critical to the overall success of
the RCRA national enforcement effort.
1. Enforcing compliance wUh RCRA permits. With most operating RCRA land disposal
facilities under permits rather than interim status, the RCRA enforcement program will focus on
permit compliance based on an emerging permit enforcement strategy. Continuing to ensure compliance
with ground water monitoring and closure requirements will be an important aspect of this strategy.
This should lead to some modest level of enforcement activity in FY 1991 which should grow
significantly in ensuing fiscal years.
2. Enforcing waste minimization requirements in permits. The national RCRA enforcement
program will explore opportunities for promoting waste minimization through provisions that
increasingly are being incorporated into RCRA permits. The strategy will include targeting a few
pilot opportunities in FY 1991, and using those cases as a learning experience for developing a broader
coordinated effort between permitting and enforcement for FY 1992 and FY 1993.
Corrective action also will continue to be an important area for enforcement. As permits are
issued, enforcement of corrective action requirements increasingly will be done through enforcement of
the permit terms, rather than RCRA 3008(h) corrective action orders that have formed the basis for
much of the corrective action activity in the past. However, RCRA Section 3008(h) orders will
remain an important enforcement tool for facilities that are not likely to be permitted for some time.
This shift in emphasis may result in additional use of judicial enforcement actions.
3. Pollution prevention. Beginning in FY 1991, the RCRA program will be examining other
opportunities to promote pollution prevention through enforcement, for example, through settlement
provisions, through enforcement targeting (e.g., large quantity generators), or through
reports/evaluations by RCRA enforcement inspectors. The national program anticipates that
pollution prevention activities will increase over the next four years.
4. Illegal disposers. This is the segment of the regulated community targeted as highest
priority for RCRA criminal enforcement. The national program will explore possible ways to
identify those handlers pro-actively through available records or data bases.
5. Non-notifying Treatment. Storage and Disposal Facilities (TSDFs) and Generators, Some
Regional and State pilot efforts already are underway to address facilities that have not subjected
themselves to the RCRA regulatory scheme. The national program will evaluate these activities in
FY 1991 to assess prospects for national use, especially regarding facilities managing newly-regulated
waste streams (e.g., under the toxicity characteristic rule or mining waste listings).
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6. Land disposal restriction enforcement. This area of activity will continue to grow, and the
national program will consider the potential for focused attention, particularly on hazardous waste
handlers who are both generators and TSDFs, in FY 1991 and beyond.
7. Experts. Presuming the enactment of new waste export legislation, the RCRA program will
pursue some highly targeted enforcement efforts in support of this legislative initiative.
8. Multi-media enforcement initiatives. RCRA will look for a few pilot opportunities in air
or water settlements in FY 1991 and FY 1992 to include specific requirements for proper handling or
minimization of hazardous wastes generated by the operation of enhanced pollution controls. In
addition, RCRA enforcement staff will endeavor to notify and consult with other media enforcement
staff when it appears that violations of other environmental statutes may have occurred at RCRA
facilities. RCRA enforcement staff may also examine opportunities for multi-media enforcement
actions, particularly in certain geographic areas.
Beyond these national efforts, the RCRA program will also continue to encourage
Regionally-developed initiatives on strategic enforcement targeting through the RIP-flex system.
These initiatives could focus on Region-specific priorities or help support national pilot programs.
Regional Screening Committees should be used to assure a coordinated, consistent and
comprehensive enforcement effort, and to assess the strategic importance of proposed enforcement
actions. The purpose of the committee is to provide an "up front" screening mechanism that will
become part of the overall planning process. The committee members will be responsible for providing
their program's views on potential enforcement actions against certain potential enforcement targets.
In order to ensure that the committees' review process does not impede the enforcement
process, proposed enforcement actions should be prioritized for presentation to the committees. In the
RCRA program, rather than define categories of cases or violations which presumptively would or
would not be appropriate for examination by the committee, the enforcement program thought it more
appropriate to specify criteria for committee members to apply in identifying possible cases to bring
to the committee. Factors to be considered in prioritizing proposed actions for presentation to the
committee should include:
enforcement history of the facility, including the degree to which prior actions have
succeeded in resolving compliance problems at the facility;
2) the degree of willfulness at stake in the violation (suggesting the possibility of criminal
enforcement);
3) the prospect for violations identified in other media:
4) the difficulty that an originating office may have in bringing its own media authorities to
bear on the problem to obtain the desired relief;
5) the relationship which the identified violations have to priorities otherwise designated
for committee consideration; and
6) the precedential value of the proposed action.
This approach also might entail establishing some management carrots and sticks to provide
the proper incentive to ensure that committee members in fact apply these criteria and bring
appropriate categories of cases to the committees. While the scheduling of committee meetings will
necessarily be determined by the Region's enforcement workload, it is anticipated that these
meetings will occur, at least, on a biweekly or monthly basis. This schedule should ensure quick
resolution of enforcement decisions.
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III. The Impact of the RCRA Enforcement Program
The RCRA Subtitle C program is characterized by a complex and fairly comprehensive set of
regulatory requirements addressing all phases of hazardous waste management. The statutory and
regulatory schemes contemplate that all facilities will be governed by a permit containing detailed
site-specific requirements and that, prior to receiving a permit, facilities will be subject to generic
"interim status" standards contained in the regulations. The increasingly high cost of compliance
(primarily as a result of the land ban and corrective action) provides a significant incentive for
non-compliance, particularly for the numerous, less "well-heeled" facilities which may find it
easier to cease operations. Enforcement is a critical component of an overall waste management
control strategy that is needed to ensure that those subject to the regulatory system do not evade it (in
whole or part) and, through the use of penalties or other sanctions, to eliminate the economic benefits
of avoiding the regulatory system.
Within the growing RCRA regulated universe, only a relatively small percentage of the
facilities have been issued permits (although most of the LDF permits have been issued).
Enforcement has been, and continues to be, the primary vehicle for ensuring that fundamental
requirements like ground-water monitoring are not only instituted, but also that they are
implemented in a technically sound manner. Enforcement under RCRA has not merely been an exercise
of assuring that regulatorily imposed numeric standards have been met, but rather has involved the
need for highly skilled technical staff working in scientifically imprecise disciplines to assure
compliance with generic performance standards.
Although RCRA Subtitle C enforcement is aimed primarily at achieving compliance with
the existing regulatory framework, it provides other benefits as well. A rigorous enforcement
program results in greater compliance. Due to the high cost of compliance, this, in turn, will provide
greater economic incentives for generators to seek pollution prevention alternatives. Although
pollution prevention has not been a significant explicit part of the existing Subtitle C regulatory
scheme, one of the initiatives focuses on enforcement of the pollution prevention requirements that
have been imposed via permits using the omnibus authority. The RCRA enforcement program will
also strive to promote pollution prevention by incorporating it in orders and decrees in appropriate
circumstances. Similarly, other positive actions such as environmental audits and management
reviews are additional benefits that can be achieved through enforcement.
Finally, enforcement is a critical tool in implementing RCRA Corrective Action, i.e., cleanup
of existing contamination at active waste management facilities. To date, over 200 orders have been
issued under the authorities of Sections 3008(h), 3013, and 7003, requiring corrective action at RCRA
facilities. In addition, enforcement will be necessary to assure compliance with corrective action
schedules contained in over 200 RCRA permits.
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The Underground Storage Tank Enforcement Program
I. The Current Enforcement Program
The overall mission of the UST program is to protect human health and the environment,
primarily by preserving ground water for present and future use. The UST program's compliance and
enforcement goals are for all States to develop strong compliance and enforcement programs and, as the
Federal regulations are phased in, for a continuously increasing proportion of owners and operators to
comply with regulations for new and existing tanks, corrective action, and financial responsibility.
Given the large size and the diverse nature of the regulated community, EPA seeks, and
encourages States to seek, maximum voluntary compliance and provides technical assistance where
necessary to enhance voluntary compliance. Where enforcement is necessary, EPA will utilize and
encourage States to use informal or expedited enforcement approaches as well as traditional formal
enforcement procedures. EPA is working with States to establish and enhance effective State
enforcement programs.
State and local compliance and enforcement efforts regarding petroleum releases have been in
place in almost all States for at least two years now, and responsible parties have begun nearly
twenty-five thousand corrective actions. A majority of States have established insurance or clean-up
funds to address releases to relieve the cost burden to tank owners and ensure corrective actions occur.
However, the continuing high number of new releases to be addressed (about 1,400 a month) is
challenging the capabilities of States to track/oversee RP corrective actions.
States and localities have often been less effective in addressing the prevention-oriented
technical regulations, which are phased-in over ten years. While most States are now building
compliance staff and have conducted extensive compliance outreach activities, creative use of
compliance and enforcement tools are needed to address more effectively a regulated universe of nearly
two million tanks.
In order to promote compliance and to build strong State programs, the UST enforcement
program has concentrated on four major activities:
Establish programs: Through Subtitle I program grants and LUST Trust Fund cooperative
agreements, Regions have been working with States to secure the legislative and regulatory
foundation for approvable State programs. This includes enforcement authorities and
procedures and active compliance programs. OUST has also provided guidance such as a
budget "kit" with computer software for estimating costs for compliance programs and a
handbook of practical tools and approaches now in use by States.
Compliance outreach: Regions are working with States to help them use a wide variety of
outreach tools including plain English summaries of the regulations, videos, slide shows,
brochures, billing inserts, advertising materials and model letters. We have also worked
with trade associations, including petroleum equipment manufacturers and suppliers, to
achieve the widest possible distribution of these materials.
Help States improve compliance activities; EPA and States are working together to
evaluate State efforts to identify needs and to develop necessary tools and training to improve
compliance results. In some cases this has been a national effort. Recent examples include (1) a
PC-based software package enabling States to track responsible parties from the first report of
a release to the final stage of corrective action, and (2) a "strategy plus tools and assistance"
package to target the first group (oldest tanks) required to meet the leak detection deadlines.
In other cases, Regions are working with individual States to analyze the State's compliance
process in order to streamline and improve performance. Regions have provided training and
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assistance in developing new tools and techniques, and objective analytical skills in
evaluating and improving processes.
Provide limited back-up role for direct enforcement; While many States have active and
comprehensive UST programs, others are still in the process of filling in regulatory or
statutory gaps. EPA's direct enforcement role has been to address some of these gaps in support
of States. As States plug the gaps, EPA's direct role will focus on targeted joint State-Federal
efforts and on Indian Lands.
II. The Enforcement Program Over The Next Five Years
The UST program's leak detection requirements continue to be phased in over the next four
years so that all tanks must be in compliance by December 1993, and all pressurized piping by
December 1990. As owners comply with these regulations, the number of releases discovered and the
number of corrective actions undertaken to address those releases will continue to be very high.
Because of the significant environmental impact of these two aspects of the regulations, they will
continue to receive the highest priority by EPA and States for the next few years. EPA will maintain
its current approach of working with States to improve procedures in the field, and helping States
address efficiently and in an environmentally sound manner the tens of thousands of responsible party
clean-ups they will be overseeing in the next five years. On the technical side, EPA will develop
ways to streamline the evaluation of site assessments and corrective action plans, and is developing
priority setting techniques (pilots this year) that enable States to target efforts on the most
significant sites. As new groups are required to comply with leak detection rules, EPA will provide
States with compliance packages and assistance directed at these groups.
EPA also believes that field citations and other approaches to expedited enforcement hold
great promise for streamlined and effective State and local enforcement in this program. EPA is
planning to expand this year's pilots into a major effort in the 1990's.
EPA has developed and piloted two approaches for targeting routine inspections. To date,
States have expressed little interest in this type of targeting, perhaps because they are fully occupied
with overseeing corrective actions. As this workload decreases, States may view targeting with
greater interest. Since almost all UST enforcement actions are conducted by States and local
governments rather than EPA, the proposed Regional screening process should have little impact on
the UST program. When it does come into play, it should address the Regional program's proposed
enforcement initiatives (e.g., joint State-Federal targeting of leak detection in wellhead protection
areas) rather than individual actions. For the few cases now being addressed by Regions, EPA
Headquarters has provided guidance on the relative priority of cases based on their public health and
environmental impact.
III. The Impact of the
jrcement Program
UST regulations are designed to compel quick detection of leaks, clean-up of existing pollution
and prevention of future pollution. For existing pollution from releases, State enforcement programs
result in protection of public health and the environment through soil and groundwater cleanups at
private rather than public expense. To date, States have been successful in getting more than ninety
percent of sites addressed by responsible parties. EPA's efforts are designed to lower the cost and
improve the quality of the corrective actions by finding ways to improve the cleanup and oversight
process.
Enforcement of regulations concerning tank upgrading and the design, installation and
maintenance of tank systems that are unlikely to leak is the key to pollution prevention. At the
national level, manufacturers report that few non-complying tanks are purchased. Education,
inspection, and assistance has proved to be highly effective at the State and local levels in
transforming the regulated community. Since ten to twenty percent of old, unprotected tanks leak,
upgrading the tank universe over the next several years will prevent tens of thousands of leaks.
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The HERA Enforcement Program
I. The Current Enforcement Program
The FIFRA compliance/enforcement program is a State and Federal partnership. Under
FIFRA, States have primary use enforcement responsibility. Through enforcement cooperative
agreements, EPA helps fund the State activities necessary to support the enforcement of FIFRA and the
State pesticide laws (e.g.. inspections, taking of samples, enforcement actions, and other related
activities). EPA Headquarters issues national guidance which establishes national enforcement
priorities and specifies the activities which the States must complete in exchange for cooperative
agreement funds. The Regions negotiate the cooperative agreements and are responsible for ensuring
that national guidance is followed by the States. Additionally, the States also set their own priorities
in cooperation with the Regions and in accordance with priority-setting guidance issued by EPA.
The cooperative agreement program enables EPA to increase its enforcement coverage through
the States, increase Federal/State cooperation, minimize duplication of effort, and take advantage of
the States' geographical proximity to the regulated industry.
States with cooperative enforcement agreements are required to implement the national
priorities addressed in yearly national guidance. The current (FY 1990) national enforcement priorities
are: (1) assuring compliance with major pesticide regulatory actions (i.e., cancellation and suspension
actions); and (2) planning for enforcement of the worker protection standards for pesticides and
associated labeling requirements.
EPA has also entered into FIFRA enforcement cooperative agreements with Indian Tribes and
Territories. In these cases, the requirements for the Regions and grantees are the same as those
mentioned above. All recipients of cooperative agreement funds must carry out coordinated enforcement
programs addressing both the national priorities and those of the grantee.
II. The Enforcement Program Over the Next Five Years
The program will emphasize targeting for environmental results. Pesticide inspections will
continue to focus on monitoring compliance with major pesticide regulations, and major
cancellation/suspension actions, and use inspections to assure food safety. EPA will establish an
integrated enforcement data base to improve targeting toward persons with a compliance history and
those persons most likely to be in violation of FIFRA. An integrated data base can also provide
information necessary to obtain a fair settlement of civil penalties.
The FY 1988 amendments have given EPA authority to require persons to notify EPA and
appropriate State and local officials about the quantity and location of the canceled or suspended
pesticide they possess. This information will enable EPA, the States and the other enforcement
grantees to target inspections to assure compliance with cancellation or suspension orders and storage
requirements at those sites where the Agency knows an affected product is located.
The program will also track compliance with all data submission requirements and target
inspections to assure that data is developed pursuant to the Good Laboratory Practice regulations. The
enforcement program will emphasize the timely submission of data, which is essential for the Agency
to make its regulatory decisions, and prompt follow-up action for failure to comply. It will also target
to assure that the data used by the Agency to make regulatory decisions is in compliance with the
quality standards of the FIFRA Good Laboratory Practice (GLP) regulations. The Agency will also
develop strategies for enforcement of pesticide worker protection, endangered species, and groundwater
protection regulations. The enforcement program will also expand its efforts in the area of pesticide
imports and exports. The program will work with the States to assure that they develop adequate
programs to enforce the container rinsate provisions of FIFRA section 19 and 40 CFR Part 165 by 1993.
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^preening procedures will be developed to focus enforcement actions on cases and violators that
represent the greatest potential threat to human health and the environment. Currently, screening is
accomplished through inspection targeting in Compliance Monitoring Strategies issued for major
pesticide regulatory actions (Le., major rules, cancellations, and suspensions). [
The Federal/State relationship for FIFRA has been successful and will continue. EPA will be
working with States on ways to refine and improve this relationship, including; (1) State
representation at EPA Compliance/Enforcement national meetings; (2) State review of pesticide
enforcement program national guidance and policies; (3) State participation in workgroups which
develop enforcement policies and regulations. EPA will continue to be an active participant at the
State FIFRA Issues Research and Evaluation Group (SFIREG) and AAPCO.
The program will emphasize training through the pilot project at U.C. Davis to conduct
workshops for senior State pesticide program managers. It will also plan workshops for Region/State
inspectors on new requirements and initiatives such as the Worker Protection Regulations (possibly
train the trainer).
The program will also focus on identifying and implementing any necessary improvements to
the enforcement cooperative agreement programs on Indian Reservations and with Territories. For
example, the problems with which Indian Tribes must deal often involve cross-jurisdictional issues,
which require particular attention and coordination with other entities. Addressing such problems
will allow for further expansion of Tribal enforcement activities through cooperative agreements with
EPA.
The program will improve liaison with the Food and Drug Administration (FDA), U.S.
Department of Agriculture (USDA), Federal Trade Commission (FTC), and Occupational Safety and
Health Administration (OSHA) on enforcement. EPA will be meeting with representatives from the
agencies to discuss ways to improve exchange of information and improve coordination of the
enforcement process. EPA will also encourage the Regions to meet with these agencies to improve
coordination on the Regional level. Through national grant guidance, the program will also encourage
meetings with the State counterparts.
The program will implement a stronger program to monitor products to assure they are in
accordance with a revised FIFRA Section 17 policy and the export notification requirements. This will
result in better information being sent to foreign governments. EPA will continue to develop and
implement Memoranda of Understanding with FDA and other countries regarding inspections to assure
compliance with the FIFRA Good Laboratory Practice (GLP) Standards.
This program will expand its Settlement With Conditions (SWC) Policy for civil penalty
assessments and pollution prevention projects under FIFRA. EPA will expand its use of seeking
environmentally beneficial activities or pollution prevention projects in the context of settlement
agreements.
More attention will be given to publicizing enforcement actions in order to multiply the
deterrence effect of that action. Grouping cases together will give the cumulative penalties more
impact or emphasize an important environmental principle for the media to spotlight.
III. The Impact of the FIFRA Enforcement Program
In the February 1987 EPA report, "Unfinished Business," and the EPA's recent report
"Comparing Risks and Setting Priorities," EPA has placed pesticide issues near the top of EPA's
priority list. Through an effective FIFRA enforcement program, the Agency can assure that the
requirements of FIFRA and its regulations are being complied with and the environmental goals of the
pesticide law are achieved.
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The seriousness with which EPA conducts its pesticide enforcement program sends a strong
message to the regulated community about how seriously they should consider complying with the
requirements of FIFRA. A strong enforcement presence in the regulated community through routine
inspections, follow-up inspections to tips and complaints, and subsequent enforcement action can deter
violations of FIFRA. Publicizing EPA's enforcement activities increases that deterrence effect.
However, the FIFRA enforcement program does not focus only on enforcement after a violation
has been discovered and damage has been done to the environment. Many of the enforcement tools
provided by FIFRA, such as Stop Sale, Use or Removal Orders (SSURO), injunctive actions, and
pesticide product seizures, offer the Agency the ability to immediately reduce environmental risk
which can result from current or potential violations of FIFRA.
Settlement of administrative civil penalties can have environmentally beneficial results in
addition to the deterrence effect the penalty can have on other potential violators of FIFRA.
Administrative civil penalties can be settled for significantly reduced amounts in exchange for
environmentally beneficial activities to be conducted by the respondent, including pollution prevention
projects.
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The TSCA Enforcement Program
I. The Current Enforcement Program
EPA's toxic substances program is focused on 1) preventing the introduction of risky new
chemicals into commerce without proper controls; 2) identifying and obtaining control of risky existing
chemicals; and 3) a field operations component focused largely on PCBs and asbestos. Under the present
program, EPA has:
- Targeted its inspections on the PCBs in use, principally the leak remediation requirements
for PCB transformers, and at PCB brokers and storage facilities, to ensure compliance and thus
reduce risk of human exposure and environmental contamination;
— Emphasized inspection of large asbestos abatement contractors to enforce against violations
of AHERA Title II of TSCA, and focused on ensuring that local education agencies identify, and
develop management plans for, asbestos hazards in schools. Also, asbestos worker protection
has been addressed for public employees in states not covered by OSHA;
- Initiated enforcement actions against facilities subject to EPCRA Section 313 who have
failed to submit a Toxic Release Inventory Reporting Form R;
— Focused on enforcement of reporting requirements under TSCA Sections 5 and 8;
— Moved against violations of TSCA Section 4 test rules, and GLP requirements, both domestic
and internationally.
II. The Enforcement Program Over lite Next Five Years
While 23 States have continuing TSCA enforcement cooperative agreements with which they
conduct inspections, enabling legislation precludes them from going forward with enforcement actions.
Currently, the vast majority of TSCA enforcement work is done by EPA. Over the next few years the
Agency will seek to enhance the role of States to provide a greater enforcement presence. The Agency is
identifying States that are interested in becoming involved and will assist with the development of
laws and programs, provide grants, and establish an interstate enforcement committee to coordinate
programs. Where State programs are not established, EPA will cultivate its Regional resources to
ensure an adequate enforcement presence. This initiative is expected to augment, not replace, EPA's
enforcement program.
The Agency sees the next five years as a critical period for preventing environmental pollution
from PCBs. Of the original 1.25 billion pounds of PCBs produced in the United States, an estimated 330
million pounds still remain in closed and controlled use, principally in electrical transformers.
These PCBs, which comprise a significant portion of the remaining PCBs in use, could
potentially be a new source of environmental contamination through mishandling or illegal disposal.
To prevent this, the Agency will continue its inspection and enforcement targeting on PCB storage
facilities, brokers, and disposal facilities to ensure proper handling and disposal under the recent
Notification and Manifesting Rule, which requires "cradle to grave" tracking of PCBs. This tracking
system, which will be substantially underway by October 1990, presents a challenging opportunity to
reduce PCBs in the environment.
In the asbestos arena, EPA will continue to encourage increased State participation in AHERA,
worker protection, and for the development of an infrastructure to address asbestos problems in public
and commercial buildings, if such a program is instituted. State participation will also be encouraged
in enforcing the requirements of the new Asbestos Ban and Phaseout regulations.
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The Agency also will work toward integrating enforcement activities for all asbestos
regulations, both within Agency programs and with the States. Work is already underway to develop
a coordinated AHERA/NESHAP enforcement program and to share information between all affected
offices. A joint effort in the summer of 1989 is being evaluated and plans for a joint NESHAP/RAC
meeting in the spring of 1990 are being developed. As areas of mutual benefit are discovered, this
program will continue to expand.
Additionally, the Agency sees an opportunity to use the information from the Toxic Release
Inventory (TRI) program to target for potential risks to humans and the environment. This will be done
by using demographic information, State Natural Heritage Program data, and other data that identify
environmentally fragile geographic locations. The Agency also will be undertaking new pollution
prevention initiatives under EPCRA, particularly through the use of settlement conditions requiring
violators to undertake pollution prevention measures. EPCRA-wide enforcement efforts are also a goal
for the future; this will require coordination between the several program and enforcement offices with
EPCRA responsibilities. The Agency has also exercised its TSCA Section 6 authority to control
pollution from a broader range of existing chemicals, such as hexavalent chromium and the
manufacture, use, and distribution of asbestos products. The combined effect of better information, and
greater use of TSCA, will allow for a shift in focus from controlling known, traditional sources of
environmental contamination, to preventing pollution from a larger list of toxic chemicals.
The program will focus enforcement actions on cases and violators that represent the greatest
potential threat to health and the environment; increase and improve enforcement coordination within
EPA and the other Federal programs and States; focus on full compliance of Federal facilities with
applicable requirements; develop an effective export strategy for existing chemicals; ensure prompt and
adequate disposal of out of service PCBs; improve inspector training and compliance on Indian lands;
expand EPA's enforcement partnership with the public by providing greater publicity regarding
enforcement actions, and with other countries through increased information sharing; and take positive
enforcement steps to encourage private sector initiatives.
The Agency will also be actively seeking to ensure compliance with international export
agreements such as the Prior Informed Consent and Good Laboratory Practice/Data Audit programs.
In summary, over the next five years the enforcement program will:
— Increase its enforcement presence through cooperative agreements with the States;
— Focus its PCB program resources on inspections and enforcement at storage and disposal
facilities, and PCB brokers, to track the expected increase in PCBs targeted for disposal;
— Bring Federal facilities into compliance;
- Take advantage of TRI to most efficiently use its enforcement resources to target facilities
based on a risk to human exposure, quantity of chemical substance, geographic location, and
demographics;
— Use pollution prevention conditions as a component of EPCRA enforcement settlements;
— Assess data quality on EPCRA Reporting forms;
- Use TSCA to prevent pollution from a wider range of existing chemicals;
— Prevent pollution through integrated enforcement activities and cross training;
— Ensure compliance with import and export requirements.
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Regions, and Headquarters, where appropriate, should establish a screening mechanism for
certain violations of TSCA, FIFRA, and EPCRA to evaluate their potential to achieve significant
environmental results, and to advance programmatic interests. Not all potential violations warrant
the added attention and associated delay that would result from such a multi-disciplined review.
Moreover, senior Regional managers within the Toxics program are capable - and presently do -
identify violations that warrant review by other media or criminal enforcement personnel even in the
absence of an established formal screening mechanism. We anticipate that this informal review will
continue for all violations in this program.
The program areas that should be reviewed for cross-media and administrative/judicial value
are currently identified as:
- Asbestos violations under AHERA;
- Violations of PCB regulations by disposal facilities;
- Violations of EPCRA reporting requirements (screening should also be considered for
CERCLA enforcement actions involving PCBs and pesticides).
Given the relatively small number of categories, screening by the Regions for civil/criminal
enforcement will be done for:
— Asbestos violations by contractors;
- Violations of PCB regulations by disposal facilities.
»i-i. » *" the 6Vent'however' of a criminal investigation, there must be an initial understanding of the
likely" result (e-g., to open an investigation or not) to allow proper allocation of resources among
priorities. &
Additionally, Regions may wish to identify one geographic area per year (or every other year
depending on the size) to look at a major industrial category or major pollutant and commit to bring
three to four multi-media cases (if warranted), including TSCA. This effort could be accomplished
within the context of the Agency's use of TRI to target major sources of pollution for abatement within
the enforcement program.
m- The Impact of the TSCA Enforcement Program
The contamination of the environment with PCB, asbestos, and other toxic substances is
widespread, mainly due to pre-TSCA pollution. Since TSCA, industry compliance with important use,
storage, decontamination, and disposal requirements has been greatly encouraged through the use of
TSCA civil penalties. Over the next five years, this enforcement will be even more important as PCBs
and asbestos are taken out of use and disposed of, and new substances are targeted for removal. The
magnitude of the quantities of toxic substances reported under TRI has stimulated the public's interest
and motivated industry to look for ways to mitigate the release of toxic substances into the
environment.
One important tool is the use of conditional settlements. Under TSCA, particularly in the PCB
program, violators have agreed to undertake environmentally beneficial expenditures to reduce
penalties. This often results in 1:4 or greater penalty to benefit ratios. This use of conditional
settlements is strongly encouraged as it results in direct benefits to the environment, such as cleanup to
higher standards than is required under the regulations, expedited retirement and disposal of PCBs in
use, or outreach and education through newspaper, magazine, or other media announcements. This not
only benefits the environment but also increases awareness of the issue among the regulated industry,
thus encouraging compliance. The Agency continues to explore creative, environmentally beneficial
settlements to achieve pollution reduction goals.
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Federal Activities Programs
Federal Facilities Enforcement Program
I. The Current Enforcement Program
The Federal Facilities Enforcement Program has undergone organizational consolidation to
provide the Agency with a single focus for enforcement of all media requirements at Federal
facilities. The organization combines the Federal Facilities Compliance Staff from the Office of
Federal Activities with the Office of Solid Waste and Emergency Response (OSWER) Federal
Facilities Hazardous Waste Compliance Office to become the Office of Federal Facility Enforcement
(OFFE) within the Office of Enforcement. The mandate of OFFE will be to develop an innovative,
multi-media enforcement program to improve compliance rates and promote cleanup activities at
Federal facilities. These efforts are designed to transition Federal agencies from compliance rates
worse than those found in the private sector to compliance rates which exceed those found in the
private sector - in all media. These "model" compliance rates, in conjunction with effective waste
minimization programs, pollution prevention programs, and effective cleanup programs should result
in a new era of environmental leadership by the various agencies and departments of the Federal
government.
To achieve this mandate, OFFE will build on the current Federal facility compliance and
enforcement efforts. The Office of Federal Activities' (OFA) Federal facility compliance program
includes compliance tracking oversight, and dispute resolution, technical advice and assistance, and
a pollution abatement planning and review process (Office of Management and Budget Cir. A-106).
This program's focus is on inspecting major facilities and developing approaches to achieving and
maintaining high rates of compliance at Federal facilities.
In FY 1989, the Federal Facilities Hazardous Waste Compliance Program negotiated about 50
Resource Conservation and Recovery Act (RCRA) and Comprehensive Environmental Response
Compensation and Liability Act (CERCLA) enforcement agreements. These agreements covered
compliance matters and cleanups at major Department of Defense (DOD) installations and
Department of Energy (DOE) weapons facilities. These agreements contained key provisions which
resolved fundamental policy issues such as the enforceability of Federal facility agreements
integration of RCRA and CERCLA requirements, and the dispute resolution process within which the
Administrator is the final decisionmaker for disputes arising under the agreements. In addition, the
program developed policy and guidance that establishes formal targeting, negotiation, and dispute
elevation procedures, and established that enforceable agreements are the primary vehicles for
managing cleanup and compliance at Federal facilities.
II. The Enforgempnf Program Over The Next Five Years
The following items compqse OFFE's top priorities over the next five years.
1) Multi-media program: Development of a National program that takes a comprehensive
approach to environmental problems at Federal facilities through the use of multimedia
inspections, targeted enforcement, and negotiation and oversight of enforceable agreements;
2) Media-specific initiatives: Media-specific goals include negotiating CERCLA Section 120
Interagency Agreements at all Federal facilities on the Superfund National Priorities List
(NPL), focusing oversight resources on RCRA corrective actions, and achieving and
maintaining compliance rates in all media that exceed those in the private sector. This goal
is to be met through the use of inspection targeting, screening strategies, and enforceable
agreements;
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3) gpsniiire management: Continue to build on the A-106 budget process to ensure that Federal
agencies obtain the funding necessary to maintain compliance and conduct cleanups. Ensure
that the Agency develops its program budget to provide appropriate oversight and
compirancefesources to keep pace with the eveMncreasing efforts and budgets of the vanous
Federal agencies;
4) nata management: Participate as a member of the EPA Data Linkage Workgroup to ensure
that all Federal facilities are identified, identification numbers are accurate throughout
FINDS and all other media program data systems, and that progress is made ; toward
standardization of certain types of information (inspections, NOVs/NONs etcO ^"J *
media program data systems must be made more "user friendly" so the formation can be
easily dLrtoaded into PC-based systems. Fully implement *e Phased Federal Faeces
Tracking System (FFTS) to be installed in each Region and at HQ by the end o FY ^(XThis
svstem will be utilized to track the compliance status of all Federal facilities inspected
during the fiscal year for each media program. This system will also be : iitiU zed I to develop
specific targeting plans for Federal facilities using compliance tracking and historical
violations trends and repeat violator analyses;
5) Third party CERCLA settlements and special FpHeral facility issues: Establish policy
and enforcement strategies addressing issues and circumstances specific to Federal facilities.
Examples include:
- strategies for managing complicated multiple party cases where a Federal agency is a
potentially responsible party (PRP)
- Defense Reutilization and Marketing Office (DRMO) issues
- Department of Agriculture grain silos
- Government owned/contractor operated (GOCO) facilities
6) Poll
. , technoloPv development: Coordinate with
appropriate program offices and Federal agencies to facilitate development °f effechve
wit
aste minimization,
^
pollution prevetion and waste minimization programs. Coordinate with DOE and
appropriate EPA offices to develop and test technologies that manage mixed and radioactive
wastes. Integrate technology development initiatives and programs within enforceable
agreements developed for cleanup and compliance matters at specific sites, as appropriate;
7) StaWEPA Interface: Continue to work with states through workgroups and organizations
to address Federal facility enforcement and policy issues. Formalize interface programs to
obtain appropriate visibility;
8) Establish a
8) Estas a era "minor faHHHpa" program: Ensure that a regulatory and
enforcement presence is being felt by all Federal departments regardless of size. Less .than
W% of all Federal facilities are "majors". Many Federal departments have few f any
"major" facilities. This program would require that each EPA Region ensure that a
predetermined number of "minor facilities" belonging to each Federal department is
inspected each year;
9) Coordinate with thP Office of Water Enforcement : Address Sewage Treatment Plants
(STPs) in sensitive ecological areas owned by the Departments of Interior and Agriculture
and Pre-Treatment and Biological Monitoring Programs at DOD and DOE industrial
facilities;
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10) Participate in Regional Geographic initiatives such as the Chesapeake Bav initiative:
Federal facilities are logical participants in these types of programs;
la> Technical Assistance/Strategic Planning: Provide EPA employees, states, and Federal
agencies with training and technical assistance to promote the development of effective
environmental management programs throughout the Federal government. Explore
innovative methods for marshaling the significant resources of the Federal agencies to
address environmental management issues where economies of scale can be realized and
enforceability is not compromised (for example, technology development, pollution
prevention, waste minimization, cleanup contract vehicles, coordinated budget development,
wetlands protection, and international programs).
III. Impact of the Federal Facilities Enforcement Program
The Federal facility enforcement program consists of two major categories: (1) compliance,
and (2) cleanup. OFFE's compliance focus will include a multi-media perspective. Compliance
tracking, inspection and targeting techniques will be critical to this effort. OFFE's overall goal, and
expected impact, over the next five years is to establish compliance rates at Federal facilities that
exceed those in the private sector. To achieve this goal, OFFE's compliance effort will require the
establishment of multi-media inspection and enforcement teams, the development and utilization of
data systems necessary to track the Federal facility compliance universe, the development of
policies and guidance which assist the compliance efforts and ensure consistent enforcement
activities, and the strategic use of enforcement tools, including inspections and enforceable
agreements. These compliance efforts will require significant resources.
The cleanup focus will target Federal facilities on the CERCLA NPL and Federal facilities
undertaking RCRA corrective actions. OFFE's cleanup role will be primarily in an oversight
capacity. The goal of the cleanup oversight program will be to ensure that enforceable agreements
(i.e., CERCLA Section 120 interagency agreements and RCRA permits/orders) exist at all NPL and
RCRA facilities undergoing cleanup, and that those cleanups move expeditiously and in accordance
with the requirements of applicable laws. Because of the scale of many of these cleanups and EPA's
role as a key decisionmaker, an effective enforcement oversight program will require significant
resources. The OFFE will work with appropriate parties in the budget development process to obtain
the resources needed to make the cleanup oversight program a success.
Both the compliance and cleanup oversight efforts will need to be supported by an effective
infrastructure. Along with the development of enforcement strategies and policies and guidance,
OFFE program development efforts will include resource and data management, coordination with
ongoing pollution prevention, waste minimization, and technology development initiatives, and
working with States and Federal agencies in a technical assistance capacity.
The Environmental Review Program
I. The Current Program
The Environmental Review Process (ERP), also known as EPA's "309 Review Process",
implements the Administrator's pollution prevention responsibilities under Section 309 of the CAA,'
which requires the Administrator to "review and comment in writing on the environmental impact of
any matter relating to (the Administrator's) duties and responsibilities...." Section 309 also states
that in the event the Administrator determines that any legislation proposed by any Federal
department or agency, action or regulation falling under the purview of the Administrator's review
responsibilities is "unsatisfactory from the standpoint of public health or welfare or environmental
quality, he shall publish his determination and the matter shall be referred to the Council on
Environmental Quality."
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EPA's ERP is essentially a means of obtaining voluntary compliance with EPA's broad
environmental goals, with pollution prevention as its focus and the section 309 referral process
[referral of the Federal action by the Administrator to the Chairman of the Council on Envn-on
Quality (CEQ)] as its means of "enforcement". In cases where a Federal action involves EPA statutory
responsibilities, the ERP serves as an early warning whether that action is consistent with EPA s
statutory goals. Overall, the ERP functions to prevent future environmental problems and ecological
damage, and to encourage natural resource conservation, in connection with major Federal projects and
activities.
The Environmental Review Program provides EPA with a unique opportunity to anticipate
and prevent future environmental problems associated with Federal actions by affording EPA the
opportunity to influence decisions, often where it is too early in the planning cycle for direct
application of EPA regulatory authorities.
Because of its multi-media and crosscutting nature, the Environmental Review Program is not
only useful in supporting the goals of individual media programs, but can be used to strengthen EPA s
overview across all media. The Environmental Review Program also allows for targeting sensitive
environmental areas (such as wetlands, riparian zones, and near coastal waters) for special
consideration.
II. The Program Over The Next Five Years
The ERP will continue to "target" for pollution prevention those Federal actions that will
result in unsatisfactory environmental impacts, particularly those Federal projects which are
representative of a class of projects or a Federal program that, taken cumulatively, is Consistent
wkh EPA's overall environment protection goals. Over the next five years, EPA will also use the
following criteria to focus these pollution prevention efforts: (1) target sensitive environmental areas
(such as wetlands, riparian zones, and near coastal waters) for special < -°nsl^T^nlf^^
environmental review' authority to target high priority problem areas^ jvhere EJA dir^t reguktory
authority is weak, and Federal agencies are significant players. In FY 1991 and FY 1992, the ERl
program will target two areas fitting the second criterion (i.e., weak direct regulatory authority,
strong Federal presence). These areas are:
(1) Mining activities on Federal lands: Target mining activities on Federal lands, especially
cyanide process mining in the West, through review of EAs and EISs and monitoring of Bureau of Land
Management and Forest Service activity. The environmental review program remains the best
national strategy for an "enforcement" approach with emphasis on prevention (through EA/EIS
review) and voluntary compliance with referral as enforcement.
(2) Non-point source pollution on Federal lands: Target selected non-point problem areas for
improvement through 309 review. Through ERP review of EAs/EISs, EPA will target key national
foists associated with degraded water bodies to ensure that "best management practices (BMPsX
coupled with water quality monitoring to ensure BMP effectiveness, are fully utilized. Working with
regions, OFA will work out the specifics in FY 1990, and develop a national plan for identifying and
solving generic problems at the HQ level.
Section 309 is aimed at substantive prevention of unsatisfactory environmental impacts,
while NEPA's EIS provisions are generally thought of as more procedural. NEPA itself however-
does contain a "pollution prevention" provision, although it is largely unrealized^ Ir L order to help
implement NEPAs pollution prevention goals, OFA also will work with CEQ in FY 1991 and FY 1992
to strengthen the CEQ/EPA oversight role of Federal agencies' compliance with NEPA from a
pollution prevention perspective.
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The discussion above identifies screening criteria that the Regions would use to target
federal actions. Fleshing out those criteria for use by the Regions for targeting will involve some
guidance development by OFA. The primary screening tool is identification of specific actions that
represent a class of actions or a Federal program that, taken cumulatively, is inconsistent with EPA's
overall environmental and natural resource conservation goals. Secondary screening tools involve
determining whether the Federal action: (1) threatens sensitive environmental areas (such as
wetlands, riparian zones, and near coastal waters) for special consideration; and (2) affects high
priority problem areas where EPA direct regulatory authority is weak, and Federal agencies are
significant players. 6
HI. The Impact of fop FKP Program
The '"base" ERP program, involving review of over 300 EISs per year and thousands of other
documents describing Federal actions that may affect the environment, provides EPA with a unique
opportunity to apply multi-media/crosscutting review in order to anticipate and prevent future
environmental problems associated with Federal actions. The ERP affords EPA the opportunity to
influence decisions, often where it is too early in the planning cycle for direct application of EPA
regulatory authorities.
,1, Pr°P°sed initiatives provide more environmental protection through targeting projects
thaMl) are representative of a larger class of projects, or a program, that has significant impact on
fcPAs overall environmental and natural resource conservation goals; (2) affect sensitive
environmental areas (such as wetlands, riparian zones, and near coastal waters); and (3) involve
areas where EPA direct regulatory authority is weak, and Federal agencies are significant players.
Indian Program
I. The Current Program
EPA has not had a visible enforcement presence on Indian lands, although some ad hoc actions
have occurred. This lack of presence has been largely the result of (a) the geographic isolation of the
majority of Indian lands, and (b) the general reliance by EPA on State inspections. It should be noted
that States do not normally have jurisdiction on Indian lands and consequently do not expend resources
to inspect facilities there.
Enforcement is addressed in the EPA Indian Policy, with a commitment to "...strive to assure
with environmental statutes and regulations on Indian reservations" (emphasis added)
-
s ae
Where a tnbally-owned or operated facility is not in compliance, the Agency committed to working
cooperatively with tribal leadership to develop means to achieve compliance, providing technical
support and consultation as necessary. For private parties, the Agency committed to act in
cooperation with the tribal government but otherwise to respond as the Agency would respond to
noncompliance by the private sector elsewhere in the country.
H. The Program Over The Next Five Years
Federal enforcement of the environmental statutes on Indian lands is an important issue This
was made clear most recently by the emphasis placed on it in questions that followed from a June 1989
oversight hearing of EPA activities by the Senate Select Committee on Indian Affairs Two
approaches need to be pursued to ensure the long-term protection of tribal (as well as off-reservation)
resources.
(a) Direct Federal enforcement of the statutes is critical, both for immediate protection of
populations and resources and to set an example for both potential future violators and for tribal
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governments as they develop environmental enforcement programs. Federal enforcement needs to occur
in close coordination with tribal government and, wherever possible, tribal inspectors. Enforcement
actions should be targeted by degree of threat, focusing on toxic /hazardous materials. A high
priority "should be placed on reservations that contain or are close to industrialized centers or
otherwise accessible to waste disposers, e.g., close to highways. In addition, an effort needs to be
made to educate tribal governments concerning the types of situations that should be reported to EPA.
It may be advisable to train tribal inspectors where a significant potential exists for violations due to
geographic location, number of potential dischargers, or experience.
(b) The second area of emphasis is development of tribal capability to enforce tribal
environmental ordinances and, as EPA delegates programs to tribal governments, the Federal
statutes. EPA should provide training on how to develop enforceable regulatory programs, including
attention to ordinance development, compliance monitoring, and tribal courts. Initial discussions
have been held with the Council of Energy Resource Tribes and with both OE and the media programs
regarding such training. Benefits would include fostering immediate tribal assistance to EPA in
ensuring; compliance, in addition to the longer-term objective of self-sufficient tribal civil programs.
(Criminal enforcement would remain a Federal prerogative since tribal governments are limited in
their criminal jurisdiction over Indians.)
Because of the unique legal and political status of Indian tribes, the criteria listed in the EPA
Indian Policy should be used to determine if an enforcement action is appropriate for violations by
triballv-owned or operated facilities The criteria are that (a) a significant threat to human health
or the environment exists, (b) such actions would reasonably be expected to achieve effective results m
a timely manner, and (c) the Federal government cannot utilize other alternatives to correct the
problem in a timely fashion. Regional Administrators proposing to initiate such action should first
obtain concurrence from the Assistant Administrator of OE, who will act in consultation with the
General Counsel. Other violations should be evaluated on the basis of their potential threat to
human health and/or other natural resources.
III. The Impact nf The Indian Program
(a) Enforcement on Indian lands will ensure protection of a population and natural resources
that may be currently at risk and which (a) should be protected at least to the same degree that
off-reservations populations/resources are protected and (b) may be subject to the Federal trust
responsibility. In addition, as the private sector is made aware that Indian lands are not forgotten
lands in terms of Federal enforcement, it can be expected to take stronger measures to ensure that
facilities sited on Indian lands are able to meet both tribal and Federal standards.
(b) Further, development of tribal capabilities to enforce tribal environmental ordinances as
well as to eventually take over Federal civil enforcement responsibilities is an appropriate and
cost-effective approach to ensure future compliance on Indian lands. It is to be expected that such an
initiative now will lead to active pollution prevention programs in the future as tribal governments
move towards higher levels of economic development.
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The Criminal Enforcement Program
The criminal enforcement program has grown significantly in recent years. It has an
established track record of 318 cases referred to DOJ resulting in 351 defendants convicted since its
inception in 1982. Beginning with barely more than 20 investigators it has progressed to a group with
over 60 investigators. A great deal has been accomplished in a short period of time.
Each year, the criminal program, together with the civil enforcement side, holds extensive
meetings with both Programs and Regions to establish priorities for the fiscal year. The criminal
program goal is to support the national Operating Year Guidance while simultaneously being
sensitive to the differences among the Regions and the need of each media program for appropriate
criminal cases to reinforce or complement its respective enforcement goals and strategy.
The traditional role of law enforcement generally, and within EPA, has been reactive. This
is inherently the way law enforcement functions. However, the Agency has developed over the past
few years a greater awareness of the need for proactive environmental enforcement, that is, better
targeting, multi-media and geographic initiatives. The investigative arm of EPA, the Office of
Criminal Investigations, working with the Office of Criminal Enforcement Counsel continue to devote
a substantial amount of time in exploring opportunities to become more pro-active in support of the
. media programs' goals as well as the needs of the Regions. This is best reflected in a trend that has
seen the sources of criminal case generation going from 85 - 90% tips and complaints from third parties
to an ever-increasing number of referrals coming from program offices.
The criminal enforcement program will continue to encourage this process through monthly
meetings with each Regional program to discuss the progress of current cases, to exchange information
regarding suspected violators, and to coordinate criminal cases where appropriate parallel
proceedings are required.
The national effort in developing the Concept of the environment as a victim is being assisted
by the participation of the Federal Bureau of Investigation (FBI) which operates in all but the Safe
Drinking Water Program area by virtue of a Memorandum of Understanding with EPA. Therefore,
the program will build upon the excellent working relationship with the Bureau to better coordinate
enforcement efforts, and to jointly work with the Bureau to develop environmental cases that send a
specific message to pre-selected geographic or industrial segments of the regulated community.
Likewise, the program will work with the FBI to develop a better plan and schedule of need
for laboratory work and forensic evidence support. This will likely result in a re-negotiation of the
existing and somewhat dated Memorandum of Understanding between the agencies.
Of course, EPA recognizes that States, not the Federal government, have the first-line duty to
enforce many of the environmental laws. To assist in the States' efforts to increase their effectiveness
in the environmental crimes context, the program will continue to devote resources to the State and
local training program at the Federal Law Enforcement Training Center, in addition to law
enforcement training offered to EPA personnel.
One of the most fruitful EPA initiatives to build stronger criminal enforcement programs at the
State and local level has been the establishment of four multi-State regional environmental
enforcement organizations funded by the Office of Enforcement. The purposes of these organizations,
which currently list forty-three States and the province of Ontario as members, is to establish and
enhance communications and cooperation throughout the network; establish computerized
information sharing systems; and provide technical assistance and specialized training to members.
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To further integration of criminal enforcement and generate more criminal cases in the various
programs' enforcement efforts, the program will continue every reasonable effort to recruit for the
Office of Criminal Investigations those interested program personnel who meet the qualifications for
selection as criminal investigators. This effort reflects the belief that use of program people who
have the qualifications for, and interest in, criminal environmental enforcement work encourages
better networking, increases the sensitivity and understanding of the program by the Office of
Criminal Investigations, and generally improves relations between criminal enforcement and the
media programs.
Through a network of Criminal Enforcement Counsels located in each Region and under the
Office of Regional Counsel, the criminal enforcement program will continue to develop more effective
and efficient legal support with EPA for the Office of Criminal Investigations Special Agents. The
early legal analysis of alleged violations will permit better utilization of scarce investigative
resources on the best cases.
The ultimate goal of criminal enforcement is to form a broad-based team among EPA's
Headquarters and Regional criminal attorneys and criminal investigators, together with the civil
attorneys and program technical people. They will work together to screen cases so that the most
appropriate cases, i.e., those which tend to build a meaningful body of environmental criminal law,
will be prosecuted in an orderly fashion. Nothing in the case screening process precludes OCI from
investigating and presenting to the Department of Justice any matter where there is material
evidence of a crime. Nonetheless, the case screening process is intended to recognize EPA's right to
establish priorities and allocate resources.
Reasonable men and women may differ as to the merits of a given case. There is a procedure
allowing for dispute resolution internally as between the SAIC and DRA at the regional level,
escalating to the Director of the NEIC with appeal to the Director, Office of Criminal Enforcement,
and with ultimate final appeal to the Assistant Administrator for Enforcement. To date, this
procedure has not been used, but it exists and stands ready for use as needed. The program will
develop an effective screening mechanism to assure that the very best remedy is selected for each fact
situation.
It will continue to follow closely the progress of those Regions where the Criminal
Enforcement Counsel within the Office of Regional Counsel reviews each enforcement case for
criminal potential as well as those Regions where it is a joint effort between the DRAs and the
Regional Counsel along with the Special Agent-in-Charge for the Office of Criminal Investigations
to perform the selection process. The results of these practices will be studied and progress reported to
other Regions so that all may benefit from the experience.
The concern that the Criminal Program has developed for being complementary to and
reinforcing of the programs' and Regions' objectives naturally gives rise to thought of potential lack
of uniformity of treatment of similarly situated violators across the country. It will be the mission of
the national headquarters' Office of Criminal Enforcement (OCE) to observe and track these trends so
that the Agency can resolve, through appropriate and timely mid-course corrections, any apparent
inappropriate disparities.
Another important function of OCE will be to work with the other enforcement divisions to
increase its participation in the regulatory development process, to ensure that all legal requirements
are drafted so as to be enforceable in the criminal prosecution context.
The Criminal Enforcement Program will continue to work, through the Enforcement
Management Council's regular meetings, with the Deputy Regional Administrators and Regional
Counsels to establish definitive time line guidance to encourage, in appropriate cases, early, up-front
decisions once a potential criminal case has been identified so that a decision can be made as to
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whether or not the case should go forward as a criminal or other enforcement case and resources and be
alloted in a timely and appropriate fashion. In complex multi-media, multi-regional and
multi-defendant cases, the necessity to allow the inquiry to mature before selecting the type of
response may be apporpriate.
The program plans to work to develop, with the Enforcement Management Council, management
systems which reward participation in a criminal case. Because of the depth of commitment,
including not least, the length of time (both in preparation of the case and the potential trial of a
case) involved, presentation of a good criminal case requires that benefits accrue to Regions and
programs willing to make this commitment. The program will more fully communicate the results of
its criminal enforcement efforts to both the public and the regulated community. It plans a broader
array of news media releases and contacts with the trade press and other useful communication
vehicles in order to apprise everyone of the efforts and progress EPA is making in this important
enforcement effort.
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APPENDIX
PROJECTS INCORPORATING TOXIC RELEASE INVENTORY DATA
Program Identified Projects
Air
Review hazardous VOCs emissions for VOC inventory completeness, to ensure that sources have
not been overlooked, and to determine whether the aggregate of such emissions are compatible
with permit limits.
TSCA
Conduct compliance monitoring using TRI data to identify potential PCB program inspection
targets.
Water
Review TRI data on all releases by the Paper and Pulp Industry and compare to industries
reporting releases of chloroform to check for non-reporters of chloroform.
Screen TRI data for possible unpermitted dischargers and noncompliers.
Identify industrial users discharging to non-pretreatment POTWs, cities receiving largest
discharges, and the identity and nature of chemicals being discharged.
UIC
Use TRI data as a screening mechanism for possible sources of wellhead contamination.
Use TRI data to look for illegal injections or discharges of toxic chemicals into underground
water and land.
Check all UIC releases for unusual releases.
Waste (RCRA/CERCLA)
Evaluate reported land releases of Section 313 chemicals to compare with California List
wastes as a screen for potential Land Ban violations.
Multi-Media
Use Section 313 data as a check to see that industries are properly reporting emergency spills
and fires under CERCLA Section 103. (TSCA/CERCLA)
Verify production estimates of regulated chemicals, such as asbestos. (Air/TSCA)
Conduct compliance monitoring of NESHAP pollutants, source evaluations, and enforcement
actions (emission data to assess public health harm occurring as a result of a source
noncompliance). For example:
Review refinery release reports for benzene and ethylbenzene to check compliance with
permits and to check for companies or industries with process streams that should be under
benzene or ethylbenzene regulation.
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Use facility specific data to determine the need for multi-media compliance inspections.
Develop lists of priority chemicals (e.g. toxicity, typical quantities and chemicals
generated in production processes) reported for specific SIC codes to use in targeting
inspections.
Use facility-specific data to help determine the need for corrective or remedial action
enforcement by assessing the likelihood of a release.
Potential Projects Identified By OE
Mtdti-Media
Incorporate TRI data in geographical mapping projects and identify populations and
ecosystems (critical environments) at risk.
Use TRI data as screen for pre-remedial Superfund program. For example: to help establish
liability under CERCLA or RCRA, to help establish assessment priorities under the
Environmental Priorities Initiative.
Multi-media inspection targeting of least efficient facilities based on mass balance
analysis using TRI data.
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PART THREE:
THE INTERNATIONAL STRATEGY
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A. GOALS
The Bush Administration is committed to increased international efforts to protect the
environment. A key part of this commitment is a recognition of the importance of enforcement of both
domestic and transnational laws and agreements.
To meet this challenge, the Office of Enforcement (OE) proposed an international strategic
plan. In this plan, we define our goals and priorities and lay the basis for agreement on necessary
resources and organization.
Enforcement engages in a variety of international efforts in accomplishing the following broad
goals:
— Provide U.S. leadership in addressing global challenges;
— Protect the citizens of the United States from noncompliance with environmental agreements;
— Protect U.S. industry from unfair competition related to environmental regulation;
— Increase international cooperation through meeting the commitments of the United States.
B. CURRENT ACTIVITIES
I. CIVIL ENFORCEMENT AND INSPECTIONS
EPA, both on its own, and in cooperation with other Federal agencies, State and local
governments, has used its enforcement authorities actively to identify violations and pursue enforce-
ment actions that address non-compliance to meet the broad goals outlined above. Highlights include:
Non-compliance with U.S. standards: pesticides contamination and food;
pre-market notification; hazardous waste import; good laboratory practice;
Unfair competition: pre-market notification; recovery of the economic benefit
of noncompliance;
International commitments; Montreal Protocol; Ocean Dumping Convention; Bilateral
agreements; Basel Convention (hazardous waste exports); Ensuring Federal agency compliance;
Global environmental leadership: hazardous waste export controls; pesticide export
controls; environmental enforcement training and education.
These activities will continue to emphasize increasing international awareness and
appreciation of the integral significance of environmental enforcement, expanding the international
exchange of expertise in the field, stimulating improved international cooperation, and international
shipment of hazardous waste.
The National Enforcement Investigations Center coordinates the implementation of regulations
involving the international shipment of hazardous wastes and conducts the technical reviews of
notifications of intent to export, manifests, exporter annual reports and other documentation. Moreover,
the enforcement cases involve large companies with significant resources with which they can contest
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enforcement proceedings. NEIC interacts routinely with Environment Canada, the Ontario Ministry of
The Environment and other international agencies to facilitate compliance monitoring and provide
environmental statistics.
Canadians are represented in the Midwest Environment Enforcement Association, which fosters
specialized training and computerized information exchange to facilitate coordinated state and
international enforcement, particularly involving shipments and illegal disposal of hazardous wastes.
The International Strategy also emphasizes bilateral agreements on ensuring Good Laboratory
Practices with the Federal Republic of Germany and others to ensure that adequate testing of
chemicals for use in this country involves spot inspections and cross-training of inspectors. OE works
closely with the Office of Pesticides and Toxic Substances to develop strategies for implementing the
GLP program, and in review and development of some of the materials for the training of inspectors.
IT. CRTMINAT. ENFORCEMENT
The Office of Criminal Enforcement has worked to effect liaison with other countries in the
investigation and prosecution of active criminal cases. The Headquarters-managed criminal enforce-
ment program is heavily involved with import and export enforcement.
Of key importance are bilateral relationships with Canada and Mexico. A major goal for EPA
criminal enforcement in the international context is the enhancement of staff-to-staff contacts. OCE
will continue to pursue such contacts in the course of active cases as well as through speaking engage-
ments at appropriate seminars.
m. OUTREACH AND TECHNOLOGY TRANSFER
The Office of Enforcement has undertaken several initiatives to:
- increase international awareness and appreciation of the integral significance
of environmental enforcement;
- expand the international exchange of expertise in the field; and
— stimulate improved international cooperation.
Capacity building and technology transfer are focal points for OE's Office of Compliance
Analysis and Program Operations' international activities. These efforts, in cooperation with other
Agency offices, include developing capabilities to enforce environmental requirements:
1. Participation in and sponsorship of international conferences on environmental
enforcement
OE staff delivered and published a case study on the U.S. enforcement program as part of a
project under the auspices of the OECD in 1984. Staff also participated in the final project report;
In May 1990, the Office of Enforcement co-sponsored the first International Enforcement
Workshop on the environment with the Netherlands' Ministry of Housing, Physical Planning and
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Environment in Utrecht and is planning a second international conference with broader sponsorship for
the Spring of 1992 in Eastern Europe. The European Economic Community and UNEP have expressed
their willingness to participate as sponsors. The Workshop Proceedings, with the cooperation of the
Office of International Activities, are being widely distributed throughout the United States and
other nations as part of an effort to share ideas and develop effective environmental enforcement
capability around the globe;
As part of a process leading up to the 1992 Budapest Conference, OE, with support from EPA's
Office of Policy, Planning and Evaluation, and Office of International Activities, will develop a series
of hands-on seminars on how to start up an enforcement program, The seminars, designed to "train the
trainers," will initially be presented for the Polish government. The government of the Netherlands
also will provide assistance in developing the seminars. Similar seminars may be developed for use in
Czechoslovakia and Hungary. This series of seminars will lead to a second broad-based international
conference on environmental enforcement to be held in Budapest;
The Office of Enforcement will also work to identify host country requirements and existing
environmental agreements, collect available information on environmental threats related to overseas
U.S. facilities, and develop strategic recommendations for reducing government environmental liability
by improving hazardous materials management practices.
2. International Visitors
OE continues to host international visitors on an ongoing basis to describe the U.S. approach to
enforcement. This has included several extended seminars for delegations from the Netherlands and
Canada as well as from more than 20 other nations.
IV. Environmental Impact Assessments
The environmental effects of overseas United States Government facilities is an emerging area
of concern. To assess the potential scope of environmental threats posed by overseas government
facilities, OE's Office of Federal Facilities Enforcement has initiated a four-step program:
— Identification and characterization of overseas U.S. facilities;
— Identification of host country requirements and existing environmental agreements;
— Collection of available information on environmental threats related to overseas U.S.
facilities; and
— Development of strategic recommendations for reducing government environmental liability
by improving hazardous materials management practices.
While much is known about the more than 1,400 Department of Defense installations in the
United States, little is known about the more than 400 overseas DOD facilities. OE will develop a
major initiative to bring to bear the degree of scrutiny of these facilities that will best inform our future
actions to address environmental problems associated with overseas DOD facilities.
Increasingly, countries around the world are instituting environmental impact assessment (EIA)
processes at the national level, including within the European Community, Eastern Europe, and in
developing countries. EIA is a process that ensures decision-makers have carefully considered the
potential environmental impacts of their decision. The process provides for the consideration of
alternatives and involvement by the public. In the United States, EIA is performed at the Federal
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level pursuant to the requirements of the National Environmental Policy Act and the implementing
regulations published by the Council on Environmental Quality. EPA has an additional role in the
review process under Section 309 of the dean Air Act.
OE's Office of Federal Activities is the focal point within EPA for issues involving the EIA
process. OFA works both bilaterally and with multilateral organizations to assist in the development
of El A'systems. OFA has represented the Agency and the U.S. in efforts by the UN Economic Com-
mission for Europe on EIA, serves as the Federal agency liaison for the Department of State, works with
the Canadian Environmental Assessment Research Council, and with U.S. agencies in articulating and
overseeing implementation of EIA requirements. OFA also has taken the lead within EPA on the issue
of EIA for U.S. participation in multilateral development banks and U.S. activities abroad. NEPA
issues involving Antarctica are another area of concern for OFA.
These activities involve work with EPA's OIA, the Congress, U.S. AID, the United Nations
Economic Commission for Europe, and international visitors.
C. CRITERIA FOR SETTING PRIORITIES
Priorities will be set according to the criteria set out in the Administrator's May 11, 1990
International Strategy for the Environment, which states that highest priority goes to programs and
projects that meet one or more of the following tests:
— Help solve environmental problems abroad that affect the U.S. at home or
provide direct benefit to EPA's domestic programs;
— Support broader U.S. Government programs and priorities;
— Emphasize regional and multilateral approaches, when possible;
— Focus resources on key countries;
— Achieve significant improvement of the environment outside the U.S.;
— Demonstrate an integrated approach to environmental management; and
— Support international environmental agreements (e.g.. Basel Convention, CFC phaseout,
Ocean Dumping Ban)
D. ACTION PROGRAM
The Office of Enforcement plans to:
1. Take a more active role in the international community
Focus efforts on enhancing environmental enforcement expertise in Eastern Europe by
sponsoring with others a series of "train the trainers" seminars on starting an environmental
enforcement program, leading up to a second International Enforcement Workshop
at the Regional Environmental Center in Budapest, Hungary;
Work with OIA to establish an enforcement component in the Regional Environment
Information Center in Budapest;
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Foster efforts to play a lead role in international organizations, such as OECD, to further
the exchange of information and expertise about environmental enforcement and to focus
efforts on working out the role of enforcement in implementing global environmental
agreements, e.g. the Montreal Protocol;
Work to include environmental enforcement as a part of international meetings on the
environ ment, especially the 1992 UN conference in Rio de Janiro.
2. Initiate enforcement action to solve environmental problems along the borders of the
United States
Work with the Regions to facilitate case screening and targeting cooperation by the
Regions for appropriate matters demonstrating the public health and risk impacts required
by Regional Strategic Planning;
Conduct expanded border checks to detect transboundary shipment violations and verify
documents;
Develop and carry out appropriate training of both United States and Mexican investigative
personnel in environmental and criminal laws;
Work toward appropriate agreements empowering interaction between investigative
personnel of EPA, SEDUE, and other affected U.S. and Mexican federal and state agencies;
Build an enhanced data collection capability to enable waste stream checks on Maquiladoras
generators;
Conduct joint investigations with Mexican and U.S.personnel aimed at criminal
prosecutions; and
Coordinate with SEDUE to achieve prosecution in the United States of priority cases.
3. Improve OE cooperation and influence with the rest of the U.S. government
OE will continue to work with DOD, the National Science Foundation, the
Department of State, and other agencies to resolve issues related to U.S. facilities overseas;
OE will work with OIA and the Departments of State and Justice on developing
terms of reference and a draft agenda for the Legal and Institutional Issues
Working Group or the 1992 UN conference in Rio de Janiro; and
OE will work with other agencies to enhance the exchange of information, provide
technical support, and increase the level of attention given environmental enforcement in the
international context.
4. Strengthen OE's organizational capability in the international arena
Coordinate through the office of the Assistant Administrator and specific budget
requests for international enforcement support.
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