ROLE OF THE EPA
INSPECTOR IN PROVIDING
COMPLIANCE ASSISTANCE
      Final Report

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                  UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
         5                       WASHINGTON, D C  20460
                                                                              OFFICE OF
                                                                          ENFORCEMENT AND
MEMORANDUM                                                       COMPLIANCE ASSURANCE

SUBJECT.    Role of the Environmental Protection Agency Inspector in
              Providing Compliance Assistance
                                      - '  /       •    '  —    '' r
FROM:       Elaine G. Stanley, Director/ > K.L  £c •-/ U Li  'L uv/
              Office of Compliance                             /j

TO:           Deputy Regional Administrators, EPA, Regions I-X
              Regional Counsels, EPA, Regions, I-X
              Regional Division Directors, EPA, Regions I-X
              Role of the Inspector Workgroup

       Much discussion has ensued since the reorganization and the creation of the  Office of
Enforcement and Compliance Assurance (OECA) concerning the role of the inspector in
providing compliance assistance.  OECA  realized that its personnel would be called upon to
perform additional duties that were not previously a stated part of its mission. One of these new
duties was the responsibility of inspectors to provide compliance assistance to the regulated
community.  Since this was a fairly new area for most inspectors, we felt it necessary to provide
supervisors and inspectors with direction and guidance.

       In March 1995, the Office of Compliance (OC) formed a workgroup of Headquarters and
Regional staff and managers to review the traditional roles and assess innovative roles for the
Environmental Protection Agency's (EPA's) compliance monitoring inspectors with regard to
providing compliance assistance to regulated facilities.  The workgroup was co-chaired by
Richard Biondi of OC and Tom Maslany from Region 3.

       That workgroup's activities resulted in the attached report "Role of the EPA  Inspector in
Providing Compliance Assistance." The report provides a framework within which  EPA's
inspectors and managers can work.  It provides guidance for when and how inspectors can
provide compliance assistance, either separately or in combination with their compliance
monitoring duties. Let me emphasize, however, that it is not our. intent to mandate that
inspectors provide compliance assistance at all times. Decisions as to the appropriate role of the
inspector should be made by the region or Headquarters compliance monitoring program
manager using program policy such as the OECA Operating Principles, MOA Guidance,
Regional strategic plans and MOA, and facility-specific strategies.
             Recycled/Recyclable . Printed with Vegetate Oil Based Inks on 100% Recycled Paper (40% Po

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       While this report discusses the appropriate times when an inspector could provide
compliance assistance and provides the cautions that should be considered when providing this
service, it does not contain all of the information that may be necessary for an inspector to
perform this function. This is only the first step in this process.

       Supervisors and  inspectors should review and discuss the findings of this report and
decide if and when compliance assistance is appropriate for inspections that are scheduled to be
conducted.

       This autumn the Office of Compliance plans to meet with all regional inspectors and
inspector supervisors to discuss and review the results of this report as well as other issues
related to sustaining and supporting the inspector workforce within the regions.  We plan to have
a short training module that addresses the aspects of the inspectors role in compliance assistance
described in this report available at that time for presentation.

       Additionally, we have worked with our representatives at NETI to develop and have
available a training module on compliance assistance incorporated in presentation of the
inspector training courses beginning the second quarter of FY98.

       Please review the attached and make it available to those in your organization responsible
for managing and conducting inspection activity. If you have any questions, please contact
John Rasnic or  Richard Biondi at 202-564-2300.

Attachment

cc: Eric V. Schaeffer, Office Director, ORE (2243A)
    Earl  Devaney, Office Director, OCEFT (2231 A)

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TO:  MANAGEMENT TEAM

FROM: Karon Johncox
     Please read over the attached "ROLE OF THE EPA INSPECTOR IN PROVIDING
COMPLIANCE ASSISTANCE - FINAL REPORT" and forward to next person on the list.
Thank you.
GARY YOUNG

ERIC NOTTINGHAM

BARBARA HUGHES

PAULA

CRAIG
                   "
DIANE SIPE
GENE LUBIENIECKI -">'^-  ii 1 /*

JIM

KARON JOHNCOX

DIANA LOVE

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                        EXECUTIVE SUMMARY
     Throughout the past twenty-five years, The Environmental
Protection Agency  (EPA) has relied on a strong, vigilant
enforcement program as the centerpiece of its efforts to ensure
compliance with the national laws.  This approach has and will
continue to serve  the nation well, and has created in America a
culture of environmental compliance that is unsurpassed in the
world.  Indeed, within the regulated sector, a professional class
of environmental managers has emerged, managing people and
systems oriented toward compliance and pollution prevention. The
full range of tools, which include compliance assistance,
necessary for motivating environmental law compliance must be
applied -in our future efforts to preserve and build on our
considerable success in fostering a compliance ethic. Formal law
enforcement will continue to be the central and indispensable
element of effective efforts to assure compliance. In fact,
compliance assistance stands little chance of succeeding without
the deterrence provided by formal enforcement.  "Compliance
assistance is not  a substitute for the regulated industry's
responsibility to  learn and comply with the rules.

     In March 1995, the Office of Compliance  (OC) formed a
workgroup of Headquarters and Regional staff and managers, co-
chaired by the Manufacturing, Energy, and Transportation Division
(METD) and Region  III.  The workgroup's purpose was to review the
traditional roles  and assess innovative roles for EPA's
compliance monitoring inspectors with regard to providing
compliance assistance and technical assistance to regulated
facilities and to  facilitate multimedia and sector-based
activities.  Although some compliance assistance is currently
being provided by  field personnel, these roles are considered an
expansion of the very important traditional roles of compliance
monitoring and are not intended to replace them.  It should be
noted this report  does not address the inspector's traditional
compliance monitoring activities other than to consider when it
may be appropriate to conduct compliance assistance activities in
conjunction with compliance monitoring.  However, this report
does attempt to address the caution that an inspector should
undertake when conducting a comprehensive inspection of
compliance monitoring and compliance assistance.
                               ES-1

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 Definitions

      (1)  Compliance  assistance is designed to help a facility
 achieve  or remain  in compliance with environmental requirements.
 It  answers questions such as:  "What is the definition of
 compliance?" and "How does my facility comply?"  This assistance
 can take many  forms,  including but not limited to, workshops for
 industry, telephone  hotlines, electronic bulletin boards, printed
 outreach materials,  compliance assistance centers, and onsite
 assistance.  The assistance can be single or multimedia in scope;
 and can  be oriented  toward complying with existing regulations
 or,  toward achieving greater emission reductions.  It can go
 "beyond a compliance" by identifying alternatives that may enable
 the facility to change  its regulatory status and no longer be
 subject  to regulations.  Assistance can emphasize traditional,
 innovative, and/or pollution prevention approaches. The most
 important goal of  EPA's  compliance assistance programs is to help
 regulated entities know  what they are expected to do under the
 law.  Establishing that  understanding not only helps the
 regulated community  take more responsibility for compliance, but
 also makes it easier to  enforce the law when those violations do
 occur.

      (2)  Compliance monitoring (i.e. traditional field
 determinations of  compliance) consists of actions to review and
 evaluate  the activities  of the regulated community, or potential
 responsible parties  under Superfund to determine compliance with
 applicable laws, regulations, permit conditions and settlement
 agreements,  including remediation requirements.  Facilities are
 targeted  for compliance  monitoring inspections using the
 following strategies:

     a. Random selection (neutral inspection scheme)

     b. Part of an initiative based on data which indicates that
this facility or sector may have a higher than average potential
to be in violation,  have higher than average potential to be the
source of adverse  impacts on the environment and/or be located in
an area with poor environmental quality

     c. Complaints or state referrals

     The primary intended use of data obtained from compliance
monitoring inspections is to support formal enforcement actions
and penalties.   These actions force a change in environmental
                               ES-2

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conditions at the facility and deter violations of environmental
requirements.

Issues with Onsite Compliance Assistance

     The workgroup concludes that EPA's compliance monitoring
inspectors can participate in many forms of compliance assistance
with little or no apparent conflict with their enforcement
responsibilities and obligations.  However, compliance assistance
that EPA provides to a facility while onsite and/or that  is  site-
specific, raises legal, policy, management, and resource  issues
about EPA's compliance monitoring inspectors handling both
functions.  Therefore, the workgroup focused its analysis oh the
proposal to have EPA inspectors provide onsite assistance.

     For purposes of this report, the workgroup defined onsite
compliance assistance in a set of three tiers  (I, II, and III)
forming a continuum from the simple to the more.technically
complex.  The workgroup has provided detailed examples of
activities in each tier in order to give a clearer picture of
what onsite compliance assistance means.  These examples  are
illustrated in Table ES-1.
                               ES-3

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              Table ES-1. Continuum of Onsite Compliance Assistance
  Tier I: Sharing Standardized
  Information and References
 Tier II: More Technically
Complex and Site-Specific
 Tier III: Most Technically
Complex and Site-Specific
   Providing physical copies of
   requirements.

   Conveying an understanding of
   requirements.

   Providing information including
   prepared guidance, manuals,
   and technology transfer
   documents.

   Providing information on what
   assistance can be gained from
   EPA, State, and local
   programs.

   Providing information on what
   assistance can be gained from
   trade and other 0-e., public)
   organizations.

   Sharing information on control
   practices and equipment used
   within a specific sector to
   comply with environmental
   regulations.

   Providing published technical
   information and/or advice for
   simple solutions that do not
   require a significant amount of
   resources or liability to the
   source/facility or regulatory
   agency

•  Providing prepared literature
   on pollution prevention
   techniques and opportunities

   Providing suggestions on
   simple techniques and
   concepts to reduce or
   eliminate pollution (e g .
   housekeeping tips)     	
Sharing information on
compliance status.

Providing review of compliance
status.

Sharing information and insight
into their particular problem
and what might be evaluated to
remedy the problem.

Providing technical assistance
on recognized industry or
sector-based practices and
concepts to reduce or
eliminate pollution (e.g.,
chemical substitution,
equipment changes).
Providing information on
specific commercial consultant
services.

Providing interpretations of the
finer points of regulatory
requirements.

Providing detailed design
information on a source/
facility's particular problem.

Providing unwritten policy
interpretations on regulatory
requirements.

Providing detailed facility-
specific engmeenng design
and matenals management
information that advances
pollution prevention.
                                            ES-4

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Rationale for a Formal Federal Onsite Compliance Assistance Program

      The  primary, and in many cases the only contact most  of  the
regulated  community has with EPA is through it's inspectors.
The inspector interacts with plant managers who are the  most
familiar with operations of the facility and are oriented to
"getting the job done." Secondly, many  EPA  employees that conduct
field work have gained significant experience in the
environmental aspects of a particular  process, experience that
few operational managers possess.  This experience derives  from
the opportunities  they have to visit,  monitor, and compare
environmental practices and mechanisms at  numerous facilities
with similar operations.

      In general,  the workgroup found  through discussions with
Regional staff and managers, that some amount of compliance
assistance has always occurred during  EPA's history of conducting
compliance monitoring inspections.  However, this is not being
done systematically or in a controlled fashion because it is not
explicitly defined as part of all compliance monitoring
inspectors' jobs,  and not all compliance monitoring inspectors
have received relevant materials and training.  The workgroup  has
concluded  that, to some degree, a Federal  role is appropriate  but
the extent of this role and how EPA personnel should carry  it  out
are the primary questions that this report addresses.

Coordination of EPA's Approaches with Those of State and Local Agencies

     The workgroup recognizes that the majority of compliance
monitoring inspections and compliance  assistance activities occur
at the State and local levels, and that EPA's approaches and
policies must be designed with this in mind.  The workgroup
examined the approaches used by several State and local  agencies
in providing compliance assistance to  the  regulated community,
particularly onsite compliance assistance.  This research showed
that most  State and local agencies have separated compliance
assistance, compliance monitoring and  enforcement programs.
However, some informal past practices  have blended the activities
and more States are moving to more formal blending of these
activities primarily because of diminishing resources.   In  other
states,  separate programs e.g., Small  Business Assistance Program
required by the Clean Air Act Amendments of 1990, are operating
effective1y.

Options for Integrating Compliance Monitoring and Onsite
Compliance Assistance
                               ES-5

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                        Role of the EPA Inspector in providing Compliance Assistance
      After examining the pros and cons of the different tiers of
 assistance,  the workgroup developed three options (A,  B,  and C)
 for  integrating onsite compliance assistance with compliance
 monitoring inspections.   These options address different ways of
 handling  Tier I and II onsite assistance.   After thorough
 discussion,  the workgroup agreed that  the most technically
 complex,  and site-specific level of onsite assistance,  Tier III,
 was  generally not  an appropriate EPA inspection activity.
 However,  there may be limited instances where Tier III assistance
 is appropriate.  For example,  where EPA has a unique
 responsibility in  carrying out its duties with indian  tribes and
 at federal facilities.   As a  result of this very limited
 application  of Tier III  assistance,  the workgroup felt that it
 was  not necessary  to address  Tier III  in any of the  options.

 Description of the Options

      In each option,  the workgroup addresses what activity will
 be done:   a  compliance monitoring inspection (CMI) and/or onsite
 compliance assistance (CA); how this would be done,  either during
 the  inspection or  during a separate site visit;  and  who would
 carry out  the activity,  a compliance monitoring inspector or
 other field  personnel.   The pros and cons  for each option are
 presented  in terms  of seven key issues:  Agency credibility,
 legal, expertise,  resources,  training,  State relations,  and
 expected benefits.

      In evaluating  the options,  the workgroup found  that  while
moving along the continuum of  onsite assistance from separate to
blended programs,  the following occurs:   (1)  the legal  risks to
EPA's enforcement program increase;  (2)  the  compliance  monitoring
 inspector  s  liability inertases;(3)  the training needs  and
 resources  to develop  requisite expertise to maintain the  Agency's
 credibility  increase  substantially;  and (4)  the  educational
background of  the  inspector needs to be more technical  and of a
 higher level,  e.g.,  college,  graduate  school,  which  may affect
 recruitment  and retention.
                               ES-6

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Option A-Compliance Monitoring Inspection Separate From
Onsite Compliance Assistance

-  Under  this  option  compliance monitoring  inspections and
   onsite assistance  are  separate.

-  Compliance  monitoring  inspectors would not  provide
   onsite compliance  assistance;  other  field personnel may
   do this.

-  Onsite compliance  assistance  (Tiers  I and/or II)  may be
   offered during a separate  site visit.

Option B—Minimal Onsite Compliance Assistance Provided in
Conjunction with Compliance Monitoring

-  Under  this  option,  EPA would provide Tier I assistance,
   including standardized information such  as  copies of
   requirements;  prepared guidance and  technical
   documents;  information on  assistance that is available
   from EPA, State and local  programs and/or trade
   organizations;  and information about the facility's
   compliance  status.

-  Compliance  monitoring  inspectors would provide  this-
   assistance.

-  Tier II assistance may be  provided during a separate
   site visit  by  either the inspector or other field
   personnel or during the same visit but clearly  defined
   and understood separate phases of the visit.

Option C—Fully Integrated Onsite Compliance Assistance
and Compliance Monitoring

-  Under  this  option,  both Tier I and II onsite  assistance
   would  be fully integrated  into the inspection visit.

-  Onsite compliance  assistance would 'entail providing
   information that could assist  in returning  the  facility
   to compliance,  including a detailed  review  and
   explanation of a facility's compliance status with
   recommendations on possible corrective action(s).
                       ES-7

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Conclusions and Recommendations

     After weighing the pros and cons of the various options for
developing and maintaining an inspection capability that
integrates compliance monitoring with compliance assistance, the
workgroup developed the following conclusions and
recommendations.

     • Onsite  compliance  assistance  can be  viewed  as a  continuum
       from  the  simple  to the more complex.  The most
       technically  complex,  and  site-specific level of  onsite
       inspection assistance, Tier III, is  generally not  an
       appropriate  EPA  inspection activity.  Therefore  the
       workgroup did not  address Tier III in any of the options.

     • Options A, B, and  C are appropriate  to use  in Agency
       field operations in conjunction with compliance
       monitoring depending on the nature of the .compliance
       problems  involved,  the type,  size and complexity of  the
       facility, and other factors.  However, as the Agency
       moves from Option  A to Option C, legal risks increase.

     • The use of any of  these options depends on  the training
       and expertise of EPA's field  personnel in the techniques
       and methods  of compliance monitoring inspections and the
       techniques and methods of onsite compliance assistance.

     • These options should be viewed as elements  in a  "tool
       box"  to be utilized as deemed appropriate by Agency
       compliance managers.

     • To be most effective, Agency  decisions about which
       option(s) should be implemented to address  an
       environmental problem or  non-compliance situation  should
       be made during up-front planning and targeting processes,
       particularly in  the development of sector-based
       strategies.

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                             TABLE OF CONTENTS

Chanter                                                                    Page

EXECUTIVE SUMMARY	ES-1
     Issues with Onsite Compliance Assistance  	ES-3
     Rationale for Federal Onsite Compliance Assistance	ES-5
     Coordination of EPA's Approaches with Those of State and Local Agencies  	ES-5
     Options for Integrating Compliance Monitoring and Onsite Compliance Assistance .. ES-6
     Description of the Options	   ES-6
     Conclusions and Recommendations 	ES-8

1.0 BACKGROUND	1-1
     1.1 Introduction	•	 1-1
     1.2 Objective and Goal  	 1-2
     1.3 Issues  	1-2

2 0 IMPACT OF NEW DIRECTIONS IN COMPLIANCE ASSURANCE ON EPA'S
     FIELD WORK AND FIELD PERSONNEL	2-1
     2 1 Compliance Monitoring. New Types of Compliance Inspections and New Types
         of Inspectors	2-1
     2.2 Compliance Assistance  New and/or Expanded Responsibilities   	2-3
         2.2 1   Compliance Assistance Definition. A Continuum	2-3
         2.2.2   Role of EPA Field Personnel in Onsite Compliance Assistance	2-6

3 0 OPTIONS FOR PROVIDING ONSITE COMPLIANCE ASSISTANCE	3-1
     3.1 Option A.  Compliance Monitoring Inspection Separate from Onsite Compliance
         Assistance   	-..   ..     3-1
     3.2 Option B Minimal Onsite Compliance Assistance (Tier I)                 .    3-2
     3 3 Option C Fully Integrated Onsite Compliance Assistance (Tier D)	     3-3

4 0 IMPLEMENTATION ISSUES AND DISCUSSION    	         .      .4-1
     4.1 Legal Issues             	          ....  4-1
     4.2 State and Local Models/Relations   ....        .          .         .4-2
         4.2 1   Informal Poll Regarding State CA Programs  .    .                  .4-3
         4 2.2   Selected State and Local Models           .  .                .   *  4-3
         4.2.3   Issues in Federal/State/Local Relations                       .   .    4-5
     4.3 Training Field Personnel for New Responsibilities in Compliance Monitoring and
         Compliance Assistance  .     	      	4-7
         4.3.1    Introduction	4-7
     4.4 Estimating Resources for Onsite Compliance Assistance Activities    	  4-8
         4.4.1    Factors Affecting Resources Estimates   	    4-9
         44.2   Factors Affecting FTEs Needed/Utilized	       .   ..4-10
         44.3   Selected Scenarios and Descriptions of Resource Needs        .   ..   4-10

5 0 CONCLUSIONS AND RECOMMENDATIONS     .           .        ..        5-1

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                             LIST OF TABLES

 Table ES-1  Continuum of Onsite Compliance Assistance .    ...       .  .      ES-5
 Table 2-1   Continuum of Onsite Compliance Assistance	      	2-5
 Table 3-1   Pros and Cons Associated with Option A (Separate CMI/CA)	3-1
 Table 3-2   Pros and Cons Associated with Option B (Minimal Onsite CA)             3-2
 Table 3-3   Pros and Cons Associated with Option C (Combined Onsite CA)            3-3
 Table 4-1   Selected State and Local Models	         .        4-4
 Table 4-2.  Training Path Correspondence to Options	              4-7
                              APPENDICES

APPENDIX A - LIST OF WORKGROUP MEMBERS

APPENDIX B - TRADITIONAL AND NEW ROLES FOR EPA FIELD PERSONNEL

APPENDS C - LEGAL SUBGROUP PAPER

APPENDK D - FEDERAL, STATE, AND LOCAL MODELS PAPER -


             INFORMAL POLL REGARDING STATE COMPLIANCE
             ASSISTANCE PROGRAMS

APPENDDC E - TRAINING CHARTS

APPENDIX F - REFERENCES

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                                1.0  BACKGROUND
 1.1    Introduction
       On March 16, 1995, Elaine Stanley, Director, Office of Compliance (OC),  Office of
Enforcement and Compliance Assurance (OECA), issued a memorandum soliciting the formation of
an Agency workgroup charged with the responsibility of assessing traditional and potentially new
innovative approaches concerning the role of Environmental Protection Agency (EPA) compliance
monitoring inspection personnel, particularly as they  relate to providing sources and facilities
compliance assistance and technical assistance during field operations or follow-up activities

       Subsequently, the Role of the  Inspector Workgroup was established, which included
representatives of OECA and the Regions. Workgroup co-chairs were designated, sub-workgroups
were established to flesh out categorical issues (e.g., legal, training, etc.), and individual workgroup
members were charged with taking the lead on specific issues.  Appendix A includes a list of
workgroup members  Weekly conference calls were convened of the workgroup members to discuss
various matters and issues focused upon documents and position papers generated by the various sub-
workgroups, or those developed through individual workgroup assignments

       Senior managers within OECA  were briefed on the workgroup's progress including the
identification of issues, a list of various  options (including pros and cons), and a framework that
builds upon the traditional role of field compliance personnel in relation to compliance and technical
assistance support.

       While the workgroup recognized that the majority of inspection and compliance assistance
activities take place at the State and local level, the design of this report is limited only to the role of
the EPA compliance monitoring inspector or field person  The next step in the implementation of this
approach should consider its application by State and local agencies. It might be appropriate to
develop those roles and their relationships with our State and local partners such that the concepts
developed here may be more broadly implemented
                                          1-1

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 1.2   Objective and Goal

       Objective—The workgroup took its directive from the March 16, 1995, memo from Elaine
 Stanley

       •   Clarify the  duties and roles of EPA  inspectors      analyze these issues (improve
           performance and become more efficient     pursue multimedia inspections, develop
           sector-based tools, provide compliance/technical assistance   ) and design a framework
           under  which EPA inspectors can undertake this comprehensive approach and provide
           compliance response

       God—To produce a comprehensive report  on prospective "roles of the inspector providing
 compliance assistance "  The workgroup has chosen to repon three options to OECA management,
 any one of which will answer the need for EPA field personnel capable of promoting environmental
 compliance The  workgroup has also undertaken  to provide management with recommendations,
 resource implications and other implementation issues, and State agency examples for each option
 The options themselves have been developed after a thorough consideration of the pros and cons of
 each

 1.3    Issues

       The workgroup identified three basic options for compliance monitoring inspectors to provide
compliance assistance, technical assistance, and information intended to reduce pollutant discharges
beyond levels required by regulation  Each option  could be applied on a single-media, multimedia,
or sector  basis   Each of these options, including associated pros and cons, are discussed in Section
3 0   The pros and cons for each identified option are related to the following issues

       •   Agency Credibility—How does the Agency embrace the concept and implementation
           of compliance monitoring inspectors conducting compliance and  technical assistance
           without jeopardizing its historical compliance monitoring and enforcement/regulatory
           presence9

       •   Legal—What assurances need to  be  provided  relating to the  appropriate level of
           compliance and technical assistance that EPA can provide and still preserve the integrity
           of its compliance/enforcement actions and to protect the field person from confidentiality
           suits and liability actions7

       •   Eipertise—What level of proficiency and expertise can individual compliance monitoring
           inspectors be expected to achieve before they provide compliance and technical assistance
           on singular, sector, and/or multimedia basis7

       •   Resources—How  does the Agency,  with limited resources, provide  for effective
           compliance  and technical assistance  while maintaining sufficient  time to conduct
                                           —

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appropriate and necessary compliance  monitoring, evidence  gathering,  and  case
development7

Training—Does the Agency  have in-house capabilities and necessary funding  to
sufficiently  and  effectively train compliance  monitoring  inspectors concerning
enhancement of compliance and technical assistance to the  desired level of expertise
necessary to effectively provide these services7  What level  of training and  assistance
should be provided to the  States to  complement Agency compliance and technical
assistance activities?

Policy Implications—What types of new policies and/or guidance would be needed to
implement any option?

State Relations—What mechanisms, such as MOAs  and  Performance Partnership
Agreements, will ensure the Agency and the States are in harmony and agreement relating
to compliance monitoring inspectors providing source/facility compliance and technical
assistance?

Expected Benefit—What are the benefits expected to occur to the regulated community,
public health, and to the environment.
                                1-3

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   2.0 IMPACT OF NEW DIRECTIONS IN COMPLIANCE ASSURANCE
             ON ERA'S FIELD WORK AND FIELD PERSONNEL

       New directions in compliance assurance that OECA is developing are affecting the nature and
types of field work and the roles and responsibilities of EPA's field personnel. Three new directions
are most significant  These include the following:

       •  The development of coordinated multimedia, whole-facility, and pollution prevention
          oriented compliance assurance strategies;

       •  The emphasis on the sector approach to compliance assurance, and

       •  The expansion of compliance assistance to the regulated community.

       These new directions  are changing the traditional  compliance monitoring field  work
performed by EPA's compliance monitoring inspectors, and creating the potential for new types of
field work, such as  onsite compliance assistance, to be conducted by compliance monitoring
inspectors and/or other EPA field personnel

       Size of EPA's Inspector Quire—The largest cadre of EPA field personnel are compliance
monitoring inspectors  Using  1992  data, EPA estimated that about 1,255 employees conducted
compliance inspections in fifteen Agency programs, excluding Superfund.  A 1987 study showed that
about two-thirds of EPA's compliance  inspectors performed this function during less than 20 percent
of their time annually  (This was presumed to be the case, until reorganization of enforcement and
compliance assurance in 1994 Reorganization at the Regional level of EPA may have affected how
the compliance monitoring inspection function is organized and who and how many employees are
conducting inspections  In some instances, the function may have become more concentrated in the
hands of fewer field personnel)

       Other EPA field personnel providing onsite assistance are those in some  Regions who are
staffing the pollution prevention programs  Recently, some Regions have established small business
or small community ombudsmen, although these persons are not usually responsible for onsite
assistance

2.1     Compliance  Monitoring:  New Types of Compliance Inspections and  New
       Types of Inspectors

       Regulatory-Based Inspections—Traditionally, the facility inspection has consisted of a
regulatory-based inspection in which a compliance monitoring inspector performs inspections under
regulations pertaining to one media, e g, air, water, or waste [See Appendix B  Traditional and New

                                        2-1

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Roles far EPA Field Personnel] Since 1991, EPA has been conducting multimedia, regulatory-based
inspections with varying results  Some cross-program training has occurred for individual inspectors,
and where appropriate teams of inspectors with single media expertise have been used to carry out
multimedia  compliance monitoring inspections.   In the  future,  EPA is  likely to  maintain the
regulatory-based inspection approach (be it single or multimedia), but it is also likely that the scope
of this inspection will be expanded to include a compliance assistance component

       Multimedia,  Sector-Based Inspections—However,  EPA is now more systematically
integrating both multimedia and  sector-based concepts into compliance  monitoring  strategies,
inspection protocols, and guidance  Using the information gained through multimedia profiling of
facilities and sectors,  new types of inspections are being developed that are sector-oriented and
process-based, rather than solely regulatory-based. As a consequence, some compliance monitoring
inspectors will need to develop new kinds of expertise about industrial processes and patterns that
occur within specific sectors  These types of expertise go beyond the traditional expertise required
in program-specific regulations, pollution control technologies,  and inspection techniques and
methods  (How these different inspection approaches will be applied to which facilities and/or sectors
and the numbers of each type of inspector needed are outside the scope of this paper )

       Future Inspections of Environmental Management Systems—Also, it may be possible in
the future, that EPA compliance monitoring inspectors will  be involved in evaluating facilities'
environmental management systems  This role depends on the results of pilot projects under the
Agency's  Environmental Leadership Program  (ELP),  Project XL, and the six Common Sense
Initiatives (CSIs)

       New Types of Compliance Monitoring Inspectors/Expertise—With a range of compliance
inspection types (regulatory-based and process-based), EPA  anticipates needing  a  variety of
compliance monitoring inspectors   For example, EPA may need the following

       •  A "regulatory program specialist" in one or more statutes who conducts compliance
          monitoring inspections at a wide range of industrial sectors, and  alternatively,

       •  An "industrial sector expert" with extensive industrial process knowledge, industry-
          specific pollution prevention knowledge, and the knowledge of one or more statutes

       Education, training, and field experience for these types  of inspectors will vary considerably,
and will affect the extent to which each would be qualified to perform additional field work,  such as
compliance assistance  Section 4 3 and Appendix E describe these new types of field personnel and
associated training  paths
                                           2-2

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 2.2    Compliance Assistance:  New and/or Expanded Responsibilities

        In general,  compliance assistance is information offered to help the regulated parties to
 understand and comply with environmental regulations. This assistance is designed to help the facility
 answer questions such as:  "What is the definition of compliance?" and "How does my facility achieve
 it9"   Historically,  EPA has provided some compliance assistance  usually tied to the initial
 implementation of new regulations, but not the type of comprehensive, multimedia compliance
 assistance, nor site-specific compliance assistance, as envisioned under OECA's new programs

        The following section defines the term onsite compliance assistance for the purposes of this
 report  This definition is key to developing the policy options on the role of compliance monitoring
 inspectors in compliance assistance that appear later in this report

 2.2.1   Compliance Assistance Definition: A Continuum

        Compliance assistance is a very broad continuum from the simple to the more complex For
 purposes of this report, compliance assistance is the act of providing information to the regulated
 community to help them achieve or remain in compliance with environmental requirements

        This assistance can be "regulatory-onemed" and focus on achieving compliance with existing
 regulations by means of traditional pollution control methods, or the assistance can  be pollution
 prevention oriented and encourage the use of innovative technologies  The assistance could also go
 "beyond" compliance to achieve pollutant reductions that exceed existing requirements or that
 address unregulated, but harmful environmental releases

        Compliance assistance can take many forms  These could include workshops with industry,
 hotlines, electronic bulletin boards and outreach materials, compliance assistance centers,  onsite visits,
 as well as "sector-based" initiatives where a program works with an entire industry sector through
 a compliance assistance campaign

       Providing environmental compliance assistance is the responsibility of EPA, State, and local
 environmental regulatory agencies, special State and local organizations, universities and other non-
 profit organizations, consultants, trade organizations, and the regulated community itself  Among
 the general compliance assistance activities that EPA is conducting and evaluating are technology
 transfer information systems and seminars, publications, business assistance offices, Common Sense
 Initiatives, etc

       Compliance assistance is defined as  "Information or advice provided by regulatory agencies
to the  regulated community to help affected parties understand and comply with statutory and/or
                                           2-3

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 regulatory requirements," and technical assistance is "the act of providing engineering or scientific
 solutions/recommendations for specific conditions."

        Onsite Assistance as a Continuum:  Tiers  I, II, and III—The workgroup discussed
 extensively the definition of onsite compliance assistance  and the term technical assistance  We found
 that there  is no common usage for either term and that technical  assistance appeared to be like
 compliance assistance, only more technically complex. But the point at which some activity  is no
 longer compliance assistance but instead is technical assistance, is a "point" that the group could not
 define clearly  Therefore, we chose to present onsite compliance  assistance as a continuum that
 includes activities from the sharing of standardized types of information to the most technically
 complex and site-specific assistance activities

       However,  in structuring Tiers I, n, and m, we recognize  that many readers will tend to
 identify Tier I as onsite "compliance" assistance, and Tier in as onsite "technical" assistance, with
 Tier n being somewhere in the middle  Because the distinctions between the tiers are not clear cut,
 we have defined specific examples of activities that field personnel would carry out in each tier, and
 avoided using the term, "technical assistance " This is the best  solution we could devise  Without
 these tiers and the specific examples of activities, we could not develop any meaningful options for
the role of the inspector in onsite compliance assistance, nor could we identify the pros and cons of
any options  By  defining a continuum and  using Tiers I, II, and III, we have overcome these
difficulties   Table 2-1 illustrates examples of activities  included in  Tiers I, II,  and  HI
                                            2-4

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             Table 2-1. Continuum of Onsite Compliance Assistance
Tier I: Sharing Standardized
Information and References
 Tier II: More Technically
Complex and Site-Specific
   Tier III;  Most Technically
  Complex and Site-Specific
 Providing physical copies of
 requirements

 Conveying an understanding of
 requirements

 Providing information including
 prepared guidance, manuals,
 and technology transfer
 documents.

 Providing information on what
 assistance can be gained from
 EPA. State, and local
 programs

 Providing information on what
 assistance can be gained from
 trade and other (i.e., public)
 organizations

 Sharing information on control
 practices and equipment used
 within a specific sector to
 comply with environmental
 regulations

 Providing published technical
 information and/or advice for
 simple solutions that do not
 require a significant amount of
 resources or liability to the
 source/facility or regulatory
 agency

 Providing prepared literature
 on pollution prevention
 techniques and opportunities

 Providing suggestions on
 simple techniques and
 concepts to reduce or
 eliminate pollution (e g .
 housekeeping tips)	
Shanng information on
compliance status.

Providing review of compliance
status.

Shanng information and insight
into their particular problem
and what might be evaluated to
remedy the problem.

Providing technical assistance
on recognized industry or
sector-based practices and
concepts to reduce or
eliminate pollution (e.g.,
chemical substitution,
equipment changes).
•  Providing information on
   specific commercial consultant
   services.

•  Providing interpretations of the
   finer points of regulatory
   requirements.

•  Providing detailed design
   information on a source/
   facility's particular problem.

•  Providing unwritten policy
   interpretations on regulatory
   requirements.

•  Providing detailed facility-
   specific engmeenng design
   and materials management
   information that advances
   pollution prevention
                                          2-5

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       Discussion of Tiers I, II, and III

       Tier I—In general, the workgroup found through discussions with Regional staff and
managers, that some minimal amount of compliance assistance is occurring during compliance
monitoring inspections, but that this is not systematic because it is not explicitly defined as part of all
compliance  monitoring inspectors' jobs, and that not all compliance monitoring inspectors have
received relevant materials and training.  The activities defined in Tier I are most like what some
inspectors are currently providing.  In a sense this tier represents the status quo

       Tier n—The middle tier is where the elements of onsite compliance assistance and technical
assistance intermingle.  Activities in this tier go beyond the sharing of standardized information,
references and materials and begin to deal with the particulars of the facility.

       Tier III—The activities defined in Tier in contain elements of our working definition of
"technical assistance"  Our working definition is as follows:

       "Technical assistance is  the act of providing engineering or  scientific  solutions/
       recommendations for specific site conditions  Technical  assistance can be used to
       provide  solutions for single or multimedia  issues,  such as pollution prevention
       opportunities Technical assistance does not always result  in physical changes at the
       facility (e.g, construction activities), but could include changes to facility operations
       (e g, facility task assignments to personnel).  Also, technical assistance  can be
       directed at environmental improvements that go beyond regulatory requirements "
                                            2-6

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        The workgroup believes that providing environmental "technical assistance" as defined in Tier
 HI, is not necessarily the responsibility of the EPA.

        After thorough discussion, the workgroup agreed that the most technically complex, and site-
 specific level of onsite assistance, Tier HE, is generally not an appropriate EPA inspection  activity
 Therefore this report does not include Tier ffl in any of the options.

 2.2.2  Role of EPA Field Personnel in Onsite Compliance Assistance

        Of the many forms that compliance assistance can take, h is likely that compliance monitoring
 inspectors can participate in workshops for industry or assist in development of compliance assistance
 materials with little or  no apparent conflict with their enforcement responsibilities onsite during
 compliance monitoring  inspections  This is because these two types of compliance assistance are
 aimed at groups of facilities rather than individual, facilities; and these types of assistance do not occur
 onsite at an individual facility

       However, compliance assistance that is provided onsite and/or that is site-specific, raises
 policy,  management, and legal issues about the possible role  of EPA compliance inspectors in
 handling these functions

       Key issues facing OECA in designing onsite compliance assistance programs involving EPA
 field personnel are as follows

       •   Should EPA separate or  integrate the  compliance  assistance and the compliance
           monitoring functions and personnel1?
       •   To what extent, if any, should EPA deliver site-specific compliance assistance9

       Section 3 0 contains the options that the workgroup developed for addressing the first
question The analysis of these three options includes the pros and cons of each in terms of important
policy and implementation issues that the workgroup  identified   These issues include  Agency
credibility, legal, expertise, resources, training, State relations, and expected benefits (to the regulated
community and for public health and the environment)
                                           2-7

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       Section 4 0 (Implementation Issues and Discussion) discusses legal/policy issues, State and
local models/relations, training EPA field personnel, and estimating resource needs

       Section 5.0 (Conclusions and Recommendations) addresses the second question, the extent
to which EPA should provide onsite compliance assistance.  The extent to which EPA should deliver
"site-specific" compliance assistance depends on how far along the continuum of compliance
assistance that program managers want to proceed, given the risks and benefits.
                                           2-8

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  3.0 OPTIONS FOR PROVIDING ONSITE COMPLIANCE ASSISTANCE
      This section describes Options A, B, and C and lists the pros and cons in separate tables for
each option, using a series of common issues (Agency credibility, legal, expertise, resources, training,
State relations, and expected benefits). The pros and cons address the primary legal, policy, and
programmatic issues identified by the workgroup.

3.1   Option  A.   Compliance  Monitoring  Inspection  Separate  from  Onsite
      Compliance Assistance
      Under this option, compliance monitoring
inspectors  would  not  provide  any  onsite
compliance  assistance   during  compliance
monitoring inspections  If EPA provided Tier I
or Tier D compliance assistance, this would be
handled  by  other  field  personnel  during  a
separate site visit  Table 3-1 lists the pros and
cons of this option
Relationship of CMI and Onsite CA Under Option
                 A
What
Activity
How
Who
CMI
During
Compliance
Monitoring
Inspection
Compliance
Monitoring
Inspector
Onsite CA Tiers 1
and/or II
During Separate
Site Visit
Other Field
Personnel
     Table 3-1. Pros and Cons Associated with Option A (Separate CMI/CA)
Issue
Agency Credibility
Legal
Expertise
Resources
Training
State Relations
Expected Benefits
Pros
• Agency enforcement actions are not
jeopardized
• Maintains Agency credibility.
• Maintains the legal responsibility to
report noted violations.
• Minimizes personnel liability of
compliance inspectors.
• Maintains Agency enforcement
experts to carry out enforcement tasks
correctly
• Preserves resources for enforcement/
compliance related activities.
• Compliance monitoring inspectors do
not have to be trained to provide
compliance assistance
• Avoids potential conflicts with State
Agency counterparts.

Cons
• Potential for conflict between
compliance monitoring inspector and
compliance assistance personnel

• Limits the use of the inspector's
technical knowledge and experience



• Not allowing the compliance
monitoring inspector to provide
compliance assistance may delay
environmental improvement
                                      3-1

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 3.2    Option B.  Minimal Onsite Compliance Assistance (Tier I)
Relationship of CMI and Onsite CA Under Option
B
What
Activity
How
CMI t-CA Tier 1
During
Compliance
Monitoring
Inspection
CA Tier II
During Separate
Site Visit

        Under this option, compliance monitoring
 inspectors would provide limited (Tier I) onsite
 compliance  assistance   during  compliance
 monitoring inspections This assistance would be
 limited to providing standardized  information
 such  as  copies  of requirements,  prepared
 guidance and technical documents,  information
 on assistance available from EPA,  State, and local programs and trade public organizations, and
 information on the facility's compliance status  If EPA provided Tier n assistance, this'could be
 handled by a trained compliance inspector or other field person, but only during a separate site visit
 Table 3-2 lists the pros and cons for this option

      Table 3-1.  Pros and Cons Associated with Option B (Minimal Onsite CA)
Issue
Agency Credibility
Legal
Expertise
Resources
Training
State Relations
Expected Benefits
Pros
• Minimizes jeopardizing Agency
credibility.
• Minimizes jeopardizing Agency
enforcement actions
• Maintains the legal responsibility to
report noted violations '
• Clanfies/mmimizes diftenng roles
Inspector (fact finding) versus
Compliance/Technical Assistance
(counseling function).
• Helps maintain Agency enforcement
experts to carry out enforcement
tasks correctly
• Helps preserve resources for
enforcement/compliance related
activities

• Helps avoid potental conflicts with
State Agency counterparts '

Cons
• Potental for conflict between
compliance monitoring inspector and
compliance assistance personnel.
• Lack of clarity and definition of role of
the EPA representatve may lead to
confusion of expectations on the part
of the regulated community 1
• Potental conflicts with confidentiality
matters.'
• Increases personal liability of Agency
representatives
• Limits the use of the inspector's
technical knowledge and experience
• The talents and interpersonal skills
necessary for a good inspector may
not be those necessary for providing
compliance assistance
• Sending out compliance assistance
personnel first may require greater
resources later if an enforcement
case results
• Requires resources to train
compliance monitoring inspectors
• Logistcal problems with States that
perform separate functions 1
• Limiting the compliance monitoring
inspector's ability to provide
assistance may delay environmental
improvement.
1 These pros and cons are also policy issues since they may necessitate the development of new policies and/or
guidance
                                          3-2

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 3.3    Option C. Fully Integrated Onsite Compliance Assistance (Tier II)
Relationship of CMI and Onsite CA Under Option
C
What
Activity
How
CMI f Tiers 1 and II
During Compliance Monitoring
Inspection
       Under this option,  onsite compliance
assistance (Tier n) provided during a compliance
monitoring inspection would include information
that could assist in returning the facility to
compliance, including  a detailed review and
explanation of a facility's compliance stilus and recommendations on possible corrective actions
However, detailed recommendations regarding pollution control equipment selection and design and
manufacturing process design are not provided. Table 3-3 lists the pros and cons of this option

    Table 3-3.  Pros  and Cons Associated with Option C (Combined Onsite CA)
Issue
Agency Credibility
Legal
Expertise
Resources
Training
State Relations
Expected Benefits
Pros
• Minimizes conflicting messages
regarding compliance status.
• Maintains the legal responsibility to
report noted violations
• Offers field compliance personnel
opportunities for career
enhancement and development.
• Enhanced program expertise
strengthens the Agency's ability to
negotiate stronger compliance
agreements
• Improves the use of existing
resources for providing
compliance/technical assistance
while preserving lesser resources
for enforcement


• May reduce time for returning a
facility into compliance and result
in quicker improvement to the
environment
• Promotes "holistic" approach
Cons
• Facility personnel and compliance monrtonng
personnel may be confused to some degree
over combined roles.
• Increases chance of making mistakes on
compliance status determination.
• Statements made by field personnel may
weaken the Agency's position in ensuring
compliance/enforcement actions
• Greatest nsk to personal liability of Agency
representatives
• May limit the use of the inspector's technical
Knowledge and experience, thereby wasting a
valuable Agency resource.
• The talents and interpersonal skills necessary
for a good inspector may not be those
necessary for providing compliance
assistance
• Sending out compliance assistance personnel
first may require greater resources later if an
enforcement case results
• Requires extensive resources to tram
compliance monrtonng inspectors to provide
detailed compliance/technical assistance
• Logistical problems with States that perform
separate functions.'

' These pros and cons are also policy issues since they may necessitate the development of new policies and/or
guidance
                                          3-3

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            4.0  IMPLEMENTATION ISSUES AND DISCUSSION
4.1    Legal Issues

       Legal issues were examined in a number of workgroup meetings and comments were
solicited from Regional workgroup members.  Hypothetical situations were proposed and
responses examined and synthesized for the report

       There were no legal issues raised for Option A or "traditional" role of the inspector as
all inspections now performed by EPA are consensual or are under inspection authority set
forth in the environmental statutes.  Questions were raised in the context of Option B and
Option C site visits.

       Generally, the issues which were the most  troublesome were:  vulnerability of the
Agency, vulnerability of an enforcement action, and vulnerability of EPA representatives.

       Vulnerability of the Agency

       •  Citizens' Suits

         -   Suits for Nonfeasance—If the Agency has a non-discretionary duty, or legal
             obligation, to perform certain inspections and to take enforcement actions based
             on those inspections, to fail to either inspect or to carry out an enforcement
             action  could leave the Agency vulnerable to citizen's suits.

         -   Confidentiality—If EPA were to become privy to information of a violation  in
             the course of providing compliance assistance, and  the  structure of the
             compliance assistance project assured no disclosure and enforcement action, the
             Agency could be the defendant in a citizens' suit or a private suit for subsequent
             harm.

      •  C onflict with State—If a State separates enforcement and  compliance assistance
         ft. ctions, issues of confidentiality would arise if a joint State inspection and Federal
         siie visit were attempted and violations are found.

      •  Criminal Enforcement—Any assurances of non-prosecution given during the site
         visit could compromise a subsequent criminal action.

       Vulnerability of EPA Enforcement Action

      •  Lack of Consent—If violations were found during a compliance assistance visit, and
         an enforcement action taken, respondent's can argue lack of notice  of an inspections

                                       —

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          (required by many environmental statutes), and lack of consent for search and
          seizure of evidence. (4th and 5th Amendments)

       •  Estoppel—Respondents in a post-visit enforcement action could argue that EPA
          had chosen to offer compliance assistance and was therefore barred from taking
          legal action. They might also argue that they had relied on the advice of an EPA
          representative as a bar to the Agency's later legal action.

       Vulnerability of EPA Representatives

       •  Adverse Witnesses—Compliance assistance representatives could be called to testify
          against the Agency because of their involvement with the company prior to the
          initiation of an enforcement action.

       •  Persona] Liability Under the Federal Tort Claims Act—EPA Representatives could
          be sued personally for any damage or violation that flowed from a company's
          reliance upon their technical or legal advice given during the site visit.

       The workgroup's response to the argument of vulnerability of Agency post compliance
assistance enforcement  actions and the vulnerability of EPA representatives who offered
compliance assistance was that these potential situations could be addressed by training
compliance assistance staff.  Early  clarification of the roles of the representative, the limits of
his/her authority, and a clear understanding of the recipients of compliance assistance as to
their opportunities, responsibilities, and potential liabilities under EPA compliance assistance
offers must be a part of the expanded role of the inspector. The question of the vulnerability
of the Agency to citizens' suits or suits for nonfeasance under the environmental statues should
be referred to the Office of Compliance.

       Other Issues

       While not strictly  legal issues, peripheral "blended role" implementation issues were
raised: whether the Agency could maintain its credibility as an enforcement agency if it
"softened" its role to include compliance assistance visits; whether the Agency can retain its
level  of field  regulatory expertise  if inspectors were required to  fulfill inspection  and
compliance assistance functions: and whether one set of Agency field people can perform so
many functions. There was also concern that, if the Agency went to dual functions, adequate
enforcement resources would not be preserved for enforcement actions, thus compromising this
aspect of the Agency's mission.

4.2    State and Local  Models/Relations
                                         4-2

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       The workgroup examined the different approaches that State and local environmental
 agencies are using to provide onsite compliance assistance to the regulated community. The
 workgroup relied on two sources of information:  an informal poll of EPA Regions by the
 OECA's Multimedia Enforcement Division (MED) about the status of State programs; and
 the information about State and local agency programs for small business assistance, gathered
 in late 1994/early 1995 by OECA's Workgroup on Measures of Success for State and Local
 Compliance Assistance Programs.

 4.2.1  Informal Poll Regarding State CA Programs

       In  response to an  inquiry  from OECA's senior management,  the  Regional
 representatives of MED informally polled the EPA Regions, asking which states separate the
 enforcement inspection function from compliance assistance. The informal results (13 states
 are not included) show that the majority (75 percent) of the States covered divide these
 functions  between  separate  offices  with separate staff  but indications are that this
 "philosophy" is changing. This is demonstrated by referrals from enforcement offices to the
 compliance assistance offices. Pollution prevention functions and technical assistance are often
 contracted out to State universities or placed in offices other than environmental offices. The
 results of this informal poll are included in Appendix D.

      This research showed that most State and local agencies separate compliance assistance
 programs and personnel from compliance monitoring and enforcement. To the extent that
 EPA adopts a similar approach, there will likely be fewer coordination issues.  To the extent
 that EPA does the opposite and integrates these programs and personnel, there will likely be
 more coordination issues.

4.2.2 Selected State and Local Models

      The descriptions and analysis of State and  local programs gathered by OECA's
Workgroup on Measures of Success Tor State and Local Compliance Assistance Programs
focused on environmental compliance assistance programs  to help small  businesses.  This
material is summarized in Appendix D, "Federal, State and Local Models."  (See Table 4-1.)
                                       4-3

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                   Table 4-1. Selected State and Local Models
Model One. Compliance Assistance As Part of Inspection by Inspectors
Name:
Location:
Onsite CA:
Program:
Focus:
Santa Rosa Compliance Incentives Program
City of Santa Rosa and Sonoma County. California Agency: POTW and other
county agencies responsible for environmental compliance.
Yes, as part of compliance monitoring inspection.

Multimedia compliance by the vehicle service and repair industry, with emphasis
on cleaning up discharges to the sewers.
Model Two. Compliance Assistance Delivered During a Compliance Assistance Visit by Inspector
Staff (Sometimes referred to as the "Gray-Hat" model)
Name:
Location:
Agency:
Onsite CA:
Hazardous Waste Outreach Program
State of Oregon
Department of Environmental Quality
Yes, as part of compliance assistance visit. Focus:RCRA compliance - primarily
assists conditionally exempt small quantity generators that are "small" having <
50 employees
Model Three. Compliance Assistance Delivered During a Compliance Assistance Visit by Non-
Enforcement Personnel
Name:
Location:
Agency:
Onsite CA:
Focus:
CAA Section 507 Small Business Assistance Programs
All States required to have this program.
Responsibility vanes; could be in State's environmental agency or other
agency(s) such as a State's Department of Economic Development Thus far.
none of the "507* programs operate out of any state's enforcement program
Thirty (30) programs plan to provide this; but smaller programs do not
CAA compliance - assists small businesses in complying with new hazardous
air pollution reduction programs referred to as Maximum Achievable Control
Technology (MACT) Standards among other things.
      In reviewing this material, the workgroup wanted to understand the "what," the
"how," and the "who" of onsite compliance assistance. "What" means the types of assistance
offered; "how" means  during a compliance monitoring inspection or during a  separate
compliance assistance visit; and "who" means enforcement  personnel or non-enforcement
personnel.  The workgroup also reviewed the procedures and policies that guide the field work
carried out under these programs.  This enabled the workgroup to assess the applicability of
these models to OECA's new approaches to compliance assurance.
                                       4-4

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       Another purpose in examining these models was to identify whether these types of
 programs present issues that are affecting or will affect the relations between EPA and these
 State and local agencies.  For example, how would EPA coordinate its approach to onsite
 compliance assistance where State and local agencies use similar and/or different approaches.

 Analysis of the Models

       These programs differ not only in the "what," the "how," and the "who," but they also
 differ in scope (single or multimedia) and whether they assist a full range of "small" businesses
 or focus on a particular economic sector.  Although they use the common criterion "small"
 sources, the definition of "small" differs among the programs.

       Size as a Criterion for Receiving Onsite Compliance Assistance—These State and local
 programs are designed to assist specific types of sources, the common criterion being "small"
 businesses.  What  criteria EPA should use  in determining which  sources receive onsite
 compliance assistance is outside the scope of this report. But the workgroup recognizes that
 such criteria are needed to make any reasonable resource estimates for the three options
 defined by the workgroup.

       Scope of the Onsite Compliance Assistance Program—Also, these programs differ in
 scope.  The Santa Rosa program is multimedia in scope while the Oregon program is single
 media in scope. The "507" programs may be either single or multimedia in scope, depending
 on program organization and management decisions made by each State. What criteria EPA
 should use to determine  the scope of onsite compliance assistance depends on several factors.
 This type of analysis is outside the scope of this report. However, such criteria are needed to
 make reasonable resource estimates.

      Sector Focus or Regulatory Focus to Compliance Assistance—One program, Santa Rosa,
works with a "sector" grouping  (vehicle service and repair facilities) and uses a multimedia
 approach.  The other programs  assist a wide range of sources subject to a particular set of
 program regulations and were mostly single-media.  (Not all "507" programs are necessarily
single-media.) Consideration of these factors is outside the scope of this report, but would
impact resource estimates for EPA's compliance assistance program.

      The workgroup drew on this analysis in developing those portions of Options A, B, and
C that pertain to "what," "how," and "who," but not with regard  to the distinctions we
developed between Tiers I, D, and ED of the compliance assistance continuum. We did not
have sufficient information about the nature of the assistance offered under all of the different
models that would have allowed then be to characterized in this way.

                                        __

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 4.2.3 Issues in Federal/State/Local Relations

       Federal Role in Onsite Compliance Assistance—With  the  development of more
 compliance assistance  programs,  either through,  or supported  by  State  and  local
 environmental agencies, and the expansion of pollution prevention programs and  related
 programs in the States, the questions arises, "to what extent is a Federal role in onsite
 compliance assistance appropriate and necessary?"

       Not all State and local programs offer onsite assistance because of the resources
 required. Some focus instead on compliance training courses and workshops for groups of
 facilities and mailings of compliance materials.

       Factors that bear on the answer to this question are as follows:

       •  The nature and seriousness of the non-compliance problem;

       •  The scope of the problem: National, Regional, State, and/or local;

       •  The potential for onsite compliance assistance to create environmental benefits or
          clean up in a cost-effective manner; and

       •  The legal, policy, management, training, resource, and other program  factors
          addressed elsewhere in this report.

       In general, the workgroup found through discussions with Regional staff and managers,
that some minimal  amount of compliance assistance  is occurring during compliance
monitoring inspections, but that this is not systematic because it is not explicitly defined as
part of all compliance monitoring inspectors' jobs, and that not all compliance monitoring
inspectors have received relevant materials and training. The workgroup has assumed that,
to some degree, a Federal role is appropriate. However, the extent of this role and which EPA
personnel should carry out this role are the primary questions that the report addresses.

       Coordination of EPA, State, and Local Approaches—EPA needs to work with the variety
of approaches  being  utilized by  State  and  local  agencies, while avoiding conflict and
duplication. Issues of coordination depend on which option(s) EPA adopts.  These issues also
depend on which sources receive onsite assistance from Federal personnel, the scope of that
assistance (single or multimedia), and on the degree of compliance assistance (e.g., how far
along the continuum of compliance assistance EPA's field personnel are allowed to operate).

       To the extent that EPA utilizes a similar approach to those of State and local agencies,
with regard to integrating or separating onsite compliance assistance and  enforcement, there
                                        __

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are likely to be fewer coordination issues and areas of potential conflict. To the extent that
EPA's approach differs from that of State and local agencies, there are likely to be more
coordination issues and areas of potential conflict.

       For example, where a State separates onsite compliance assistance from enforcement
(e.g.,  uses non-enforcement personnel and site
 ....             ,              ,.               Characterizing Coordination Issues
visit  that is  separate   from  a  compliance  	B	
                                         .             State and Local Agency Organization
monitoring   inspection)   then  the  following
         &     r      /                     °                        Separate       Integrated
situation is likely to arise.  In those States that
have   created  a   clear   division   between
                                                                    ISSUBS          issues
enforcement functions and compliance assistance,
                                                           Separated Fewer         More
                                                                    coordination     coordination
                                               EPA
                                               Organization
                                                           Integrated  More           Fewer
                                                                    coordination     coordination
                                                                    issues          issues
these two divisions do not pass information
across  function  lines.    In  this  instance,
compliance monitoring inspectors report directly
to the legal arm of environmental enforcement.
These State inspectors will be very reluctant to share either enforcement or compliance
information with EPA representatives, if that representative does not respect the division but
instead  shares the information freely between EPA's enforcement  personnel and EPA's
compliance assistance personnel.

      Implementation of any type of onsite assistance program by EPA will require a more
detailed assessment of these issues and thorough discussions with State and local agencies.

4.3   Training Field  Personnel for New Responsibilities in  Compliance Monitoring and
Compliance Assistancelntroduction

4.3.1  Introduction

      The Training Subgroup developed several charts showing the training paths that exist
or could be established to develop the different types of personnel with compliance monitoring
and/or compliance assistance duties to be performed onsite at a regulated facility'. These paths
are displayed in detail in three charts found in Appendix E.

      The training paths were developed at an early stage, prior to the final agreement on the
language for Options A, B, and C. Given resource constraints, the subgroup did not update
these attachments to correspond exactly to the final options.   However, the training paths
outlined are still relevant as their correspondence to the options is shown in Table 4-2.

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              Table 5-1. Training Path Correspondence to Options
Option
Option A: Separate CM from CA
Option B: CM + CATierl
Option C: CM + CA Tiers I & II
Appendix E Attachment(s)
Attachment 1 - Training Paths for Existing CM Inspectors, and
Attachment 3 - Training Paths for New CA Field Personnel
Attachment 2 - Training Paths for Hybrid Inspector
Attachment 2 - Training Paths for Hybrid Inspector
      Matching Training Paths and Options A, B, and C—Each training chart shows a "path"
or chronology of training that leads to an "OUTCOME." An "OUTCOME" means the type
of personnel and expertise that will result if an individual follows the "training path" leading
to that particular "OUTCOME."

      •  There are many types of field personnel/expertise, e.g., "OUTCOMES," that EPA
         could develop to meet new program needs.

      •  After an individual completes training and achieves an initial "OUTCOME," the
         individual can continue to alternative or advanced  "OUTCOMES."   These
         alternative or advanced "OUTCOMES"  are many and  varied, and would be
         selected based on program needs for different and/or new'types of inspection
         expertise, and new types of compliance assistance expertise.

      •  Training is cumulative as the individual moves along the training paths from left
         to right.

      For Option A:

      •  Attachment  1—Shows the training  paths  and  "OUTCOMES"  for  EPA's
         compliance monitoring inspectors under existing training policies for basic training,
         program-specific training, and training for multimedia screening inspections. This
         pertains to Option A.  Most of this training already exists

      •  Attachment 3—Shows the training paths and "OUTCOMES" that  EPA could
         develop if onsite compliance assistance is provided  by EPA field personnel other
         than  compliance monitoring inspectors, such as "compliance assistance specialists"
         and  "compliance assistance generalists."  This too pertains to Option A.  This
         training would have to be developed.


      For Options B and C:
                                      4-8

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       •  Attachment 2—Shows the training paths and "OUTCOMES" that EPA could
          develop if CA Tier I and/or n were integrated  with or handled by compliance
          monitoring inspectors. This is the "hybrid" inspector concept.  Training paths in
          this attachment pertain to both Options B and C.  While some existing training for
          inspectors is relevant to these options, training  that pertains to specific sectors,
          industrial processes, and onsite compliance assistance would all need  to be
          developed.

4.4    Estimating Resources for Onsite Compliance Assistance Activities

       The workgroup discussed how to estimate resources for the elements of an onsite
compliance assistance program.  To do  this in a valid way requires a  number of policy
decisions that are outside the scope of this paper. However, some of the factors that will affect
resources needed to implement the options outlined above have been identified

4.4.1   Factors Affecting Resources Estimates

       Factors that could affect resources estimates include:

       •  Which sources receive onsite assistance
          -   Size criterion
          -   Sector criterion
          -   Regulatory criterion
          -   Risk criteria
          -   Non-compliance criteria
          -   Equity considerations

      •  Scope of the assistance
         -   Single-media
         -   Multimedia
         -   Regulation specific
         -   Sector specific

      •   Level of assistance
         -  Tier I
         -  Tiern
         -  Tier HI

      •  Nature of the assistance
         -  Voluntary—A voluntary program is one in which the source has the option to
            decline the assistance.
         -  Involuntary—An involuntary program is one in which the assistance is offered
            as part of an enforceable agreement.

      •  Cost of assistance

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          -  Free
          -  Fee-based

       •  Number of sources affected
          -  All sources
          -  Sources selected by using criteria above
          -  Sources self-selected, if program is voluntary.

       Any combination of these factors could potentially affect the size of the universe of
sources who seek or are targeted for compliance assistance which will affect the amount of
resources needed to provide the assistance.

4.4.2  Factors Affecting FTEs Needed/Utilized

       Estimating the FTEs needed for effective onsite compliance assistance means estimating
the following:

       •  The number and type(s) of EPA personnel needed for field work

       •  The amount and type of training needed for effective onsite compliance assistance;

       •  Defining the tasks of onsite compliance assistance, e.g., the amount of time spent
          preparing for and operating in the field and preparing any reports about the field
          activities or other follow up work.

       •  Defining  the program support activities, e.g., (a) developing necessary policies,
          guidance, and standard operating procedures, (b) developing compliance assistance
          materials to be used in the  field or shared with the  source, and (c) providing
          compliance assistance materials to the source.

       Of the factors listed above in section 4.4.1, four are essential to estimating FTEs needed.
These include how many and which sources and what scope and level of assistance will be
provided.  These factors, in turn, could affect which EPA personnel are selected to carry out
onsite assistance. To the extent that selected personnel have previous training and experience
that are directly relevant to the program of onsite assistance, costs of training may be reduced.

4.4.3  Selected Scenarios and Descriptions of Resource Needs

       Although quantitative  resource estimates are outside  the scope of this paper, the
following scenarios  offer  a qualitative way of considering resource needs for Federal onsite
assistance.
                                        4-10

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       More Personnel, Training, and Support Needed as Program Moves From  Tier I to
 Tier II—Before outlining several scenarios, the resources needed to provide onsite assistance
 in terms of Tiers I, n, and HI described in Section 2.2.1 will be commented on. In general, as
 the program moves from Tier I activities to Tier n activities, the need for training and
 program support activities increases substantially.

       But the unknown factor is the number of field personnel receiving the training and
 support. One set of assumptions suggests that Tier I activities would be conducted at more
 sources than Tier n activities.  Therefore, more field personnel would need to be trained and
 supported at that level than at the next level and so on.

       This means that a program emphasizing Tier I activities at many facilities, would
 require the training and supervision of many field personnel, while a program emphasizing
 Tier n activities at fewer facilities, would require more in-depth training and supervision of
 fewer field personnel. The cost (FTEs and dollars) of implementing these different programs
 could actually be similar, regardless of which scenario was employed.

       Illustration of Resources Needed for Two  Types of Onsite Programs—The following
 scenarios are two  of many and are for purposes of illustration only.  Certain policies and
 guidance for field operations would have to be developed regardless of which of these scenarios
 was  employed.  Therefore, this "overhead"  has not been included in the discussion of
 "program support activities"  or "resources needed."

       The term "compliance assistance techniques" means the ways of working with  the
facility to gain owner/operators confidence, ways of educating and sharing  information
effectively, etc., that are different from compliance monitoring and enforcement methods.

       Scenario 1: Tier I Single-Media Assistance to Small Facilities—A program that provides
Tier I single-media onsite compliance assistance to small .sources that are having difficulty
complying with new regulatory requirements that require technology change would need the
following:

       •  Single Media  Regulatory Experts—Trained to the depth necessary to understand
          the compliance issues and needs of a particular type of facility.

       •  Sector-Generalist Training—Trained in general knowledge of different types of
          sources affected  by specific regulations with sufficient knowledge to aid these
          different sources.
                                        4-11

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       •  Compliance Assistance Training—Trained in innovative and pollution prevention
          compliance methods and technologies related to the regulation to be implemented,
          and applicable to  a  range of sources.  Also trained in compliance assistance
          techniques.

       •  Program  Support Activities—Development  of sector  specific materials  on
          innovative/pollution prevention methods.

       •  Workload—One field person per facility for four (4) hours.

       Scenario 2: Tier II Multimedia Assistance to Targeted Sector with Medium and Large
Facilities—A program that provides Tier D onsite compliance assistance that is multimedia
in scope to sectors targeted  because of risk and noncompliance history would .need the
following:

       •  Multimedia Expertise—Trained in each media to the depth necessary to understand
          the compliance issues and needs of this type of facility.

       •  Sector-Specific Training—Trained in  processes, inputs/outputs, waste streams,
          sources, etc. Depending on the number of product lines, this could entail training
          in several different processes.

       •  Compliance Assistance Training—Trained in innovative and pollution prevention
          compliance methods  and technologies  for this sector and compliance assistance
          techniques.

       •  Program Support Activities—Development of multimedia sector-specific materials
          and development  of information on  innovative/pollution  prevention  methods
          applicable to the sector, etc.

       •  Workload—One or more field persons per facility for 1-2 days.

       Implementation of any type of onsite assistance program will require an assessment of
the resources needed to be effective. The factors identified in this section of the report should
be included in that assessment.
                                        4-12

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              5.0  CONCLUSIONS AND RECOMMENDATIONS


       As the workgroup considered options for integrating onsite compliance assistance with
compliance monitoring inspections, it concluded that, as the options  moved  along  the
continuum, the legal risks to EPA's enforcement program increase significantly, the inspector's
liability increases, and the  training needs and resources to develop requisite expertise to
maintain  the Agency's credibility increases substantially.   The workgroup identified  the
following items to consider when determining which option to implement:

       •  Expertise—Compliance monitoring inspectors could adequately provide compliance
          and technical assistance but this assistance  needs to be carefully planned to
          maximize limited resources.

       •  Training/Investments—The Agency would have to invest significantly in training
          and document preparation (e.g.,  policies, manuals, etc) to adequately prepare
          compliance monitoring inspectors to perform compliance and technical assistance
          activities.

       •  Liabilities—Given  the  potential legal consequences  of  inappropriate   or
          misinterpreted compliance and/or technical assistance, certain safeguards need to
          be established to preserve EPA's  integrity and legal authority and to minimize
          liabilities of compliance monitoring inspectors during onsite visits or follow-up
          activities relating to compliance and technical assistance matters.

       •  Implementation/Phase-In—The framework and activities required to provide
          compliance and technical assistance should be phased  in over time and periodically
          evaluated to ensure that goals and expectations are being achieved.

       •  Coordination with States/Local Agencies—Compliance and technical assistance
          must be consistent and in concert with State and local agency compliance activities
          to assure continuity, minimize confusion on behalf of source owners and operators,
          and result in effective information  sharing.

       After weighing the pros and cons of the various options, the workgroup developed  the
following conclusions and recommendations.

       •  Onsite compliance assistance can be viewed as a continuum from the simple to  the
          more complex.  The most technically complex,  and site-specific level of onsite
          assistance, Tier ID, is generally  not  an appropriate EPA inspector activity.
          Therefore the workgroup did not address Tier in in  any of the options.

       •  Options A, B, and C are appropriate to use in Agency field operations depending
          on  the nature of the compliance problems involved,  the type, size and complexity

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of the facility, and other factors. However, as the Agency moves from Option A to
Option C, legal risks increase.

The use of any of these options depends on the training and eipertise of EPA's field
personnel in the techniques and methods of .compliance monitoring inspections and
the techniques and methods of onsite compliance assistance.

These options should be viewed as elements in a "tool box" to be utilized as deemed
appropriate by Agency compliance managers.

To  be  most  effective,  Agency  decisions about  which  option(s) should  be
implemented to address an environmental problem or non-compliance situation
should be made during up-front planning and targeting processes, particularly in
the development of sector-based strategies.

Although this report does not address the circumstances under which each option
should be utilized, the workgroup has several observations about the applicability
of different options to the size and complexity of the facility. Option B may be
appropriate for more sophisticated/complex facilities while Option C may be most
appropriate for smaller, less complex facilities.
                              5-2

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       APPENDIX A




LIST OF WORKGROUP MEMBERS

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LIST OF WORKGROUP MEMBERS
Name
Rich Biondi
Tom Maslany
Gary Polvi
Glenn Hanson
Becky Barclay
Paul Boys
Mike Carter
John Dombroski
Ken Garing
Kris Goschen
Dan Granz
Davis Jones
Bob Kramer
Marged Harris
Mark Lehr
Francis Liem
Laura Livingston
Gene Lubieniecki
Dave McGuigan
Mike Michaud
Lee Okster
Mark Siegler
Ann Stephanos
Stephen Suprun
Carroll Wills
Rich Winklhoffer
Lynn Vendinello
Office
OC/METD
Region 3
OC/METD
Region 3
OC/CCSMD
Region 10
Region 4 - ESD (Athens)
OC/CCSMD
NEIC
Region 7
Region 1
ORE/MM
Region 3
ORE/MM
OC/AGED (Denver)
OC/AGED
Region 2
NEIC
Region 3
Region 6
ORE/WED
ORE/AED
OC/CCSMD
NETI
NETI (West)
Region 5
OECA
Phone Number
(202) 564-2300
(215) 597-3025
(202) 564-7056
(215) 597-6723
(202) 564-7063
(206) 553-1567
(706) 546-2620
(202) 564-7036
(303) 236-3636
(913) 551-5078
(617) 860-4358
(202) 564-6035
(215)597-1181
(202) 564-6025
(303) 236-6241
(202) 564-2365
(212)264-8428
(303) 236-3636
(215) 597-3024
(214) 665-6491
(202) 564-6024
(202) 564-8673
(202) 564-7043
(202) 260-6777
(303)969-5815
(216)522-7260
(202) 260-2842
           A-l

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                  APPENDIX B




TRADITIONAL AND NEW ROLES FOR EPA FIELD PERSONNEL

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       The Sub-group assigned to  "Define Functions  of Field Personnel" identified the
 following as the present role of the compliance monitoring inspector or field person in terms
 of functions and responsibilities:1

       •  Official  Public  Representative—The inspector deals directly with  the  public,
          particularly during compliance investigations.

       •  Authorized Representative—The inspector's primary role is as the authorized
          representative of the Administrator of the U.S. Environmental Protection Agency
          through presentation of official  credentials that provide identity and designate
          authority to perform duties in accordance with applicable Federal environmental
          statutes.

       •  Fact-Finder—The inspector assesses whether the facility is in compliance with laws,
          regulations, and with any relevant environmental permits. The inspector must be
          skilled in obtaining critical information necessary for EPA to determine compliance
          or noncompliance.

       •  Enforcement Case Developer—Proper collection and preservation of evidence is
          vital for the development of enforcement actions.

       •  Enforcement  Presence—The  inspector's  presence  casts  a  wide shadow over
          regulated facilities thus deterring managers from violating the  environmental
          requirements.

       •  Project Manager—The inspector may serve  as team leader for large,  complex,
          multimedia inspections.

       •  State Coordinator—The inspector may be asked  to serve as a coordinator with
          State programs. Federal inspectors may be required to conduct State file reviews,
          perform joint inspections with State officials, and provide notification to the State.

       •  Regulatory Technical Educator—Field personnel  serve as a source of regulatory
          information. The inspector provides technical assistance to facility managers by
          directing them to useful sources of information relevant to problems observed at the
          facility.

       •  Technical Authority—Field personnel are frequently called upon to help  the Agency
          interpret  regulatory  requirements, technical data,  and  assess environmental
          impacts.
  'Prepared by Mark Lehr, Chemist, Agriculture and Ecosystems Division, OC. Denver, CO August 23, 1995, Revised
November 6, 1995

                                         —

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Litigation/Negotiation Support—Field personnel are routinely called upon to assist
with case development and/or litigation in areas such as; case support, depositions,
testimony, negotiations, and other related activities.
                                B-2

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     APPENDIX C




LEGAL SUBGROUP PAPER

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                              February 16,1996

MEMORANDUM

SUBJECT:   Legal Issues of Blended Roles of Federal Inspector and Compliance
             Assistance Representative in the Field

FROM:      ROI Legal Issues Sub-Workgroup

TO:         ROI Workgroup Members

       This position paper focusses on some of the potential legal problems which could
arise from a "blended role" (e.g., a combination of traditional enforcement inspector,
compliance assistance, and technical compliance advisor functions) for the EPA field
representative.  The  assumptions we made were that the same person would  be
performing all functions onsite and this would be either at the same time or in a series
of "visits." We have reserved the term "inspector" and "inspection" for the traditional
regulatory enforcement inspections set forth in the environmental statutes.

       The Agency as well as personnel in the field must be aware that, as the field
representative expands his  or her role, the potential for confusion and  subsequent
negative impacts on legal enforcement action increases and they must know how to avoid
these situations. With that as a given, our conclusion is that, if properly managed, the
roles of the inspector, compliance assistance advisor, and technical advisor can  be
complimentary.

       We have not found any problems with pollution prevention advice being given
by an enforcement inspector.  Currently pollution prevention advice is appropriately
given by all Agency field representatives.  We are also assuming that  any employee
representing the Agency can and must react to any obvious threat to human health and
the environment or apparent criminal violations; this goes without debate.

       The legal questions of the extent of the Agency's discretion to defer enforcement
in the event that violations are discovered in a compliance visit should  be referred to
OGC.
                                     C-l

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 Issues
       Credibility of the Agency

       EPA has had a regulatory presence in the field since its inception. To "soften"
that role decreases the respect for EPA authority and encourages facilities to try to "cut
deals" or influence inspectors at the site. This in turn will put inspectors in situations
where they are "serving two masters," ^enforcement and compliance.  There can be
conflict unless it is clear which of these is a primary role.

       The combined and increased breadth of functions may decrease the achievable
degree of inspector specialization and expertise, compared to that of the facility's experts.
If this were the  case, or perceived  by the facility to  be the case, any on the spot
compliance advice will be considered less "expert" and creditable to that advice which
the company has in-house.  This could hamper the Agency's  ability to advise both legally
and for compliance assistance.
       Differing roles:  Inspector v. Counseling Functions of a Field Representative

       The primary role of the inspector is to gather facts based on observations and
samples which can be used as evidence in a legal case. The inspector has a potentially
adversarial relationship with the regulated facility. Compliance assistance, on the other
hand, functions best in a non-adversarial situation of mutual cooperation.  To ask a
single person to know the regulations in detail for several media, carry out interviews,
and conduct sampling and record observations is a tremendous task in itself. To ask this
person to also inspire  a trusting relationship with the facility which encourages the
facility to accept advice on technical processes would be overwhelming. Compliance
assistance programs which carry enforcement actions as a penalty for non-successful
participation place the Agency representative in a very difficult position.

       Jeopardy of an Enforcement Action

       Advice given to facility by a representative of EPA could be raised as a defense
to a legal action. EPA personnel could be subpoenaed as witnesses in support of the
proposition that they gave assurances or erroneous advice which should be an equitable
(if not yet legal) barrier to EPA enforcement against the facility.
                                      C-2

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       Constitutional Problems; Notice and Search and Seizure

       The Constitution restricts the Federal government from unreasonable search and
seizure by setting boundaries on when, where, and under what circumstances Federal
representatives may inspect private and business properties or examine records or other
documents. These limitations are set forth in the statutes and inspectors inform the
facility of these rights. Compliance assistance visits would be strictly consensual as there
is no legal authority given to the Agency to "visit" a facility. Therefore, if a visit were
to become an inspection, or evidence of a violation were found during a visit which the
Agency sought to use as evidence in an enforcement action, this could be barred under
the 4th Amendment.

       Under the traditional inspection scenario, Constitutional "notice" requirements
are  taken  care of by the presentation  of Agency credentials, identification  by the
inspector of himself as a regulatory inspector, and full disclosure of the purpose of the
inspection. In a visit, this would not necessarily be the case. If a violation were found
during a visit, where these formalities had not been undertaken, evidence could  be
barred in a later enforcement action because there was no official notice. This situation
also raises the legal question of whether consent on the part of a facility to a visit could
later be  interpreted legally as a  nonconsentual search if the facility wanted to  have
evidence found during the visit suppressed.

       Conversely, if full legal notice was given before a compliance assistance  visit,
would this put the whole transaction on such an adversarial footing that the assistance
would be ignored or the visit viewed by the facility as a trap?

       Conflict With State Counterparts

       Many States have a clear division between enforcement functions and compliance
counseling in order to avoid the legal problems and barriers to enforcement actions.  In
some instances, these two divisions  do not pass information across function lines. The
inspectors  report  directly to the  legal arm  of environmental enforcement while
compliance assistance representatives do not report to the enforcement side except for
criminal activities. In some States, the enforcement side will report borderline violations
to the assistance representatives. These State inspectors will be very reluctant to share
either enforcement or compliance information with the EPA representatives who will not
respect the division but rather share information freely between the two offices within
EPA.
                                      C-3

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       Agency Representatives May Have a Legal Responsibility to Report Violations and
       the Agency May Have a Legal Responsibility to Take an Enforcement Action

       Not all of the Administrator's enforcement responsibilities are discretionary.
 Most of the environmental statutes have provisions for citizens' suits where the Agency
 is not diligently prosecuting violations of the statutes. They also contain provisions for
 suits against the Administrator for not performing non-discretionary duties. To place
 field representatives in a position where they observe legal violations of the regulations
 and do not report it or do not take any enforcement action may leave the Administrator
 open to  citizen's suits.  The tension between the "duties" of a field agent in -these
 situations could be difficult to overcome if the Agency were sued. On the other hand, to
 have a field agent assure that prosecution would not be forthcoming and then have the
 facility  open to a citizen's suit would have a chilling effect on cooperation with the
 Agency on the part of the facility.

       Technical Assistance Barriers to Dual Function

      In some instances, technical assistance requires specific licensing and credentials,
 licensed  professional engineer, architect, etc. If an Agency representative with less
 "credentials" were to give advice, it may open an EPA representative to at least censure,
 at most,  personal or professional liability. There are also safety concerns with certain
 facilities that a generalist or person unfamiliar with  technical processes may not
 understand.  In these instances, inappropriate recommendations could result in unsafe
situations.

      Resources for Enforcement Should be Preserved

      Diversion of enforcement resources into  compliance assistance projects  will
decrease enforcement efforts.  Use of information gathered by compliance assistance in
enforcement actions may also cause a  drain of enforcement  case support resources
because of the legal challenges available under this new plan of dual purpose site visits.
Because compliance assurance and inspections at  large facilities will be the most likely
to generate the situation where advise will be given and violations uncovered, the result
may be complex litigation which is resource intensive.

      Confidentiality

      TSCA and FTJFRA  have confidentiality safeguards  built  into the  inspection
process (CBI). Inspectors must be certified to receive confidential business information
                                      C-4

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which is handled according to formal internal agency procedures. Failure to regard this
confidentiality is punishable by fine. These liabilities apply to all who have access to CBI
material.
                                      C-5

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       Criminal Enforcement

       Civil  investigators are expected to return information of possible  criminal
 behavior observed in the field to the criminal agents for further development.  If
 assurance of non prosecution are given at the opening of a site visit, it could effect later
 criminal case development This could also be raised as a defense to an Agency criminal
 action. The Criminal office came out very strongly against the suggestion that inspectors
 offer technical assistance (Memo 2/28/94)

       Personal Liability of Agency Representatives

       If erroneous technical advice is given, the Agency representative may be open to
 personal suits for economic damage to the facilities or suits for co-payment of any
 liability incurred in detrimental reliance upon his advice. This is laid out under the
 Federal Tort Claims Act.

 State Problems

       Logistical Problems with States Which Separate Functions

       Because some states have separated the technical assistance and enforcement
functions, and often do not allow the transfer of information across these functional lines,
it will be difficult for them to participate in an EPA "blended" site visit.  Likewise, it
may be the case that a "blended" inspector is  not welcome on a State "focussed" site
visit even if the EPA representative maintains a "limited" role.

       Confidentiality

       Field representatives and inspectors would have access to legal and non-Jegal
information.  If States have rules of confidentiality between legal and technical offices,
they would be reluctant to share this information with EPA and will likewise be reluctant
to use information EPA gathers in contradiction to the State policy.
                                      C-6

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              APPENDIX D

 FEDERAL, STATE, AND LOCAL MODELS PAPER

INFORMAL POLL REGARDING STATE COMPLIANCE
         ASSISTANCE PROGRAMS

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      STATE EXAMPLES OF NEW ROLES FOR FIELD PERSONNEL2

 Role I. Compliance Assistance

       Inspector or other Agency staff provides information  on  existing regulatory
 requirements, forthcoming regulatory requirements, and sources of additional technical or
 other advice.  Advice may be given in 'the form of a compliance evaluation or determination
 of regulatory status (e.g., need for a permit). Information may be delivered during workshops,
 training seminars, other outreach type activities, or during onsite visits.

       Model One:  Compliance Assistance Delivered as Part of the Inspection by Inspectors

       The Santa Rosa Compliance Incentives Program

       An interesting  example of a local government implementing elements of the new
 approach to environmental compliance is the Compliance Incentives Program of the City of
 Santa Rosa and Sonoma County, California. The program was initiated to make it simpler
 and more rewarding for smaD businesses (particularly the vehicle service industry) to comply
 with environmental regulations.

       The program followed a 1-year investigation of high levels of noxious fumes in a sewer
 trunk line serving an area in which many auto dealers and repair shops are located. Auto shop
 owners felt that regulations from the eight county organizations responsible for environmental
 compliance were unclear and conflicting. There was little communication between regulatory
 agencies and information on how to comply with all requirements was not readily accessible.
 Shop owners were increasingly frustrated by the regulator's use of fines and penalties, but no
 guidance, to achieve compliance.

       The  Compliance Incentives Program utilizes a combination of technical assistance,
 multimedia regulatory streamlining, public recognition, and enforcement action as tools to
 achieve compliance. The eight county agencies with responsibility for environmental protection
 formed an interagency group that developed a streamlined multimedia inspection checklist.
When a business signs up for the program, they receive an information kit which provides best
environmental management practices for auto service and repair shops, a self-inspection
   'Roles not focused on here include pollution prevention and multimedia The workgroup assumes that inspectors,
regardless of the activity that the}1 are undertaking, are working to integrate p2 into their work at least to the extent that they
identify p2 opportunities and refer facilities to additional sources of information With regard to multimedia, the workgroup
assumes that sector-based materials and compliance assistance materials will be multimedia, wherever possible The
workgroup is not addressing the issues of where to target multimedia inspections since that issue has been discussed under
the auspices of the Office of Regulatory Enforcement's multimedia division
                                         —-

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 checklist for all environmental requirements, and a vendor list for equipment and services that
 could help the facility comply. Participating shops are inspected by personnel of one of the
 agencies with environmental responsibilities, and these personnel are trained  to conduct
 multimedia inspections. On the initial inspection, violations are identified and businesses are
 offered guidance about how to comply. If the follow-up inspection finds them in compliance,
 they are awarded a Sonoma Greed Business sticker.  The program is publicized by the county
 so consumers are made aware of which facilities are in compliance and are encouraged to do
 business with those facilities.

       Before the program was initiated, inspections found no auto shops in full compliance
 with environmental requirements. Since the program  began, over 100 shops have requested
 voluntary inspections. Of these, only 3 percent were found to be in compliance on the first
 inspection, but this increased to 70 percent on the follow-up inspection. To date, 67 shops have
 received a recognition sticker and 21 shops are pending recognition. This indicates that 32
 percent of all shops that discharge to the local sewerage system are in full compliance. Since
 the program was first implemented, 25 shops have  been  re-inspected after being  in the
 program for 1 year, with 23 being found to have remained in full compliance.

       There have also been direct savings to the participating regulatory agencies. The multi-
 agency savings from the 23 shops that  were re-inspected through multimedia coordinated
 inspections was $9,654 in reduced inspector time and paperwork costs and $6,482 in reduced
 sampling costs.

       In addition, a customer satisfaction survey showed that auto shops were 100 percent
 satisfied with the program. Twelve percent of these shops said that they would be willing to
 pay increased permit fees to maintain the program.

       Model Two:  Compliance Assistance Delivered During a Compliance Assistance Visit by
       Inspector Staff (sometimes referred to as the Grey-Hat Model)

       The State of Oregon's Hazardous Waste Outreach Program

       Although RCRA does not require States  to establish compliance assistance programs
for small quantity generators of hazardous wastes, many States have taken it upon themselves
to establish such programs and, in some cases, are required to do so by State statute. Under
a 1991 Oregon law, the Oregon Department of Environmental Quality (DEQ) is required to
provide a technical assistance program, including direct, onsite assistance, for "generators of
hazardous waste who are or are likely to be classified as conditionally exempt generators."
(ORG 466.068).
                                        D-2

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       To  fulfill this mandate, DEQ has developed a compliance assistance program for
conditionally-exempt generators (CEGs) of hazardous wastes and for other generators with
fewer than 50 employees. The DEQ provides two different types of compliance assistance,
comprehensive onsite assistance to a smaller number of facilities and more limited compliance
assistance  to a wide range of facilities. The DEQ soon realized that the key to delivering
compliance assistance through a regulatory agency is to develop a series of "ground rules"  that
are communicated to the small business prior to the visit. The  approach that they devised is
termed the "grey hat model" and  is formalized in a Hazardous Waste Field Activities
Handbook.

       The Grey-Hat Model—The term "grey hat" stems from the fact that in Oregon field
personnel  are expected to conduct both compliance assistance and compliance enforcement
activities.  As necessary, Oregon has established principles, guidelines, and ground rules for
how this can occur. Of note, is their creation of an "enforcement response" policy that reflects
the provision of compliance assistance.

       Oregon's compliance assistance program is available to small businesses (fewer than 50
employees) that are classified as CEGs. However, small businesses that are classified as small
or large quantity generators (SQGs, LQGs) are also eligible.  Technical Assistance (TA) is
provided only on request.
                 A. The Process for Providing Compliance Technical Assistance
 1.      Facility requests a compliance TA visit
 2.      If the facility is scheduled for an inspection, the inspection can be delayed until after the TA
        visit, unless DEQ feels that the inspection should proceed because the facility has a history
        of noncompliance, or other factors make the inspection necessary (e.g. citizen complaints).
 3.      Field staff must send a letter to the facility describing the ground rules for the compliance TA
        visit.
 4.      Field staff prepare for a TA visit as they would for an inspection. They must be fully aware of
        all regulations that might apply to the facility and review facility files and records.
 5.      During the facility walk-through, if a "clear and immediate danger" that can not be
        immediately resolved encountered, field staff must document it, and inform the
        owner/operator that TA is suspended.
 6.      During the closing-conference, the fiield staff will review the potential areas of
        noncompliance and give initial direction on how to rectify them.  At the same time, the fiield
        staff and facility will gegotiate a schedule for responding to the potential areas of
        noncompliance.
 7.      The facility is then given a compliance TA report, or Environmental Management Assessment
        (EMA) that is similar to a NON in terms of content, but differs in tone.  It includes the list of
        potential areas of noncompliance, required actions to correct them, and a recommended
        schedule for response and compliance.

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8.     Areas of noncompliance that represent "clear and immediate dangers" may lead to an
       inspection. Potential areas of noncompliance that do not represent "clear and immediate
       dangers" will not be referred to inspectors.  Instead, they will be corrected within a time
       frame, or "response period," tht is mutually agreeable to DEQ and the facility.

9.     At the end of the "response period" the facility must notify DEQ in writing that it has
       imlemented all of the required actions, or explain why it has not done so. Failure to comply
       may lead to an inspection.

10.     Field staff follow-up to respond to any unanswered questions and to check on the progress
 	of required responses to areas of noncompliance.	
                                          D-4

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                      B. Important Elements of the Ground Rules
  Although most of the elements of the ground rules have been described above, it is
  important to note that before offering compliance assistance, DEQ makes facilities aware
  that:
  1.    If a "clear and immediate danger" is observed, DEQ will suspend compliance TA
        and may initiate a compliance action.
  2.    It will receive written documentation of all potential areas of noncompliance
        observed.
  3.    It must agree on a schedule ("response period") for rectifying any potential areas
        of noncompliance observed and that, at the end of the period, DEQ will ask the
        facility to certify in writing that the potential areas of noncompliance have been
        rectified or why they have not
  4.    Requesting TA does not increase or decrease the potential to be inspected. An
        inspection can occur at any time.  If a facility is scheduled for an inspection at the
        time TA is requested, DEQ may postpone the inspection. Facilities with poor
        records of compliance are less likely to have an inspection postponed. If a
        compliant is received prior to a facility requesting TA, DEQ will use its discretion
        to determine whether an inspection or TA is offered.
  5.     If th.' facility is inspected after the TA visit but prior to the end of the response
        period, DEQ will not cite any of the violations documented during the TA visit.
  6.     Violations documented during compliance TA site visits are not represented to be
        exhaustive by DEQ. The facility remains responsible for complying with all
        applicable requirements.	
       Model Three: Compliance Assistance Delivered During a Compliance Assistance Visit
       by Non-Enforcement Personnel

       The C lean Air Act 507 Small Business Assistance Programs

       The  1990 CAA  amendments established new  regulatory requirements for small
business. For example, the 1990 amendments created a hazardous air pollution reduction
program, commonly referred to as Maximum Achievable Control Technology Standards
(MACT), that will require businesses that release more than 10 tons of a given hazardous air
pollutant or 25 tons of a combination of hazardous air pollutants to reduce the emissions of
these pollutants. Typical small business that may be covered by these new regulations include:
agricultural chemical applicators, asphalt manufacturers, asphalt applicators, auto body shops,
bakeries, distilleries, dry cleaners, foundries, furniture manufacturers,  furniture  repairs,
gasoline service stations, general contractors, hospitals, laboratories, lawnmower repair shops,
lumber mills, metal finishers, newspapers, pest control operators, photo finishing laboratories,

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 printing shops, refrigerator/air conditioning service and repair, tar paving applicators, textile
 mills, and wood finishers.

       Obviously, these requirements are substantial. In order to help small business comply,
 Section 507 of the 1990 CAA amendments requires States to establish compliance assistance
 programs to help small businesses comply with the new requirements. In order to be eligible
 to receive assistance from one of these compliance assistance programs a business must:

    "  -  be owned or operated by a person that employs 100 or fewer individuals;
       -  be a small business concern as defined by the Small Business Act3;
       -  not be a major stationary source as defined by the CAA;
       -  not emit 50 tons or more per year of any regulated pollutant; and
       -  emit less than 75 tons per year of all regulated pollutants."

       The State small business assistance programs, as required by the CAA, are required to
 have the following program elements:

       •  Development, collection, and coordination of information on compliance methods
          and technologies for small business stationary sources.

       •  Assistance to small business stationary sources on methods of pollution prevention
          and accidental release prevention and detection, including providing information
          concerning alternative technologies,  process changes, products and methods of
          operation that help reduce air pollution.

       •  Designation of a State office to serve as an Ombudsman for small business in
          implementing the requirements of the Act.

       •  Establishment of a small business stationary source compliance assistance program
          for determining applicable requirements and permit issuance.

       •  Adequate mechanisms for notifying small business stationary sources on a timely
          basis of their rights under the Act.

       •  Adequate mechanisms for informing small business stationary sources of their
          obligations under the Act, including a program for referring sources to qualified
          auditors or for the State t" provide for audits of the operations of such sources to
          determine compliance with this Act.
  'The Small Business Act defines a small business as any business which is independently owned and operated and not
dominant in its field as denned by Small Business Administration (SB A) regulations under section 3 of the Small Business
ACL The definitions for a small business under SBA regulations can be found in 13 CFR Pan 121 and are listed by Standard
Industrial Code (SIC) categories

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       •  Expedited procedures to respond to requests from small business stationary sources
          for modifications of any work practice or technical method of compliance, or
          schedule of milestones  for  implementing such work practice or method of
          compliance preceding any applicable compliance date, based on the technological
          and financial capability of any such small business stationary source.  No such
          modification may be granted unless  it is in compliance  with the applicable
          requirements of the Act including the requirements of the State Implementation
          Plans.

       •  Creation of a Compliance Advisory Panel.

       Each State now has a 507 program. Since the program requires an Ombudsman and
 a technical assistance program, in many states compliance assistance staff are located in more
 than one agency or  in different parts of  the agency. For  example, in some States the
 Ombudsman role is in the Department of Economic Development while the technical assistance
 component is in the regulatory agency.  In addition, since the 507 programs are required to
 provide pollution prevention information, many  are working cooperatively with the State
 pollution prevention programs. In a few cases, the pollution prevention program has taken
 on the compliance assistance responsibility as well.

       Currently there are no cases in which any portion of the 507 program is run out of the
 State enforcement program. Therefore, staff are not enforcement resources.  Funding for the
 507 program comes directly from air permit fees, as mandated by statute.  Further, a recent
 survey of these programs showed that about 30 were planning on providing onsite assistance.
 Many of the smaller programs are not able to provide onsite assistance and restrict their
 compliance assistance activities to workshops and general outreach.  Also, about half of the
 programs offer services to their businesses and promise confidentiality and another half offer
 a correction period. In some cases, the businesses are offered  confidentiality in the beginning
 and then may opt for a correction period and thereby give up the confidentiality protection.

 Role II. Sector-Based Inspections

       The inspector develops an industry-specific expertise and inspects one particular type
of industry.  The inspector is able to provide facilities with additional compliance assistance
because he/she has developed a better understanding of the industry and learns from practices
observed at other facilities. The Agency is also able to assess common compliance problems
within the industry sector and develop  appropriate compliance assistance tools targeted at
these problems.

       State of Washington's Sector-Based Inspections
                                        D-T

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       The State of Washington's enforcement program has an Industrial Section that contains
 enforcement personnel with sector-specific expertise.  The Industrial Section is small with a
 staff of only 15 people, as compared to a total enforcement staff of 500. The staff has sector
 specific knowledge of aluminum smelters, pulp mills, and oil refineries.   Individual staff
 members focus all of their activities on one of these three industrial sectors. The sectors were
 established by legislation that specified that the department would have expertise in these three
 industries. All of the inspectors are professional engineers. They do not  do separate technical
 assistance visits or compliance assistance visits. However, they do provide both technical and
 compliance information during inspections. The turnover of inspectors in this Section is the
 lowest in the enforcement program.  Most of the staff have been in the Industrial Section for
 5 to 10 years.

       One issue that has resulted from this arrangement is that the inspectors know these
 industries very well and as a result there is a challenge for the staff* to use the "black hat" when
 necessary.

      NEIC Multimedia Process-Based Inspections

      Within  EPA,  our National Enforcement Investigations Center (NEIC) also has
 developed a sector expertise in a few areas. For example, over the past few years NEIC has
 conducted numerous multimedia inspections at petroleum refineries. These inspections can
 take up to two weeks and therefore  allow the inspectors to develop a good understanding of
 individual facilities.   Since these inspections  are process-based, the  inspectors have also
 developed a good  understanding of the  refining process.  NEIC  is  planning to  use the
 information that they have learned about common compliance problems at refineries to send
 back out to the regulated community as a form of compliance assistance.

 Role III.  Environmental Management Systems Assessments

      In addition to compliance evaluations, there is an ever increasing recognition that
 environmental  management systems  assessments (EMAs) are useful in determining the
environmental picture of a facility.  EMAs focus on identifying and addressing the underlying
causes of non-compliance. EMAs  look at a facility in  terms of organization, structure,
environmental  commitment, formality  of environmental programs, internal and external
communication, staff resources, training and development, etc.. Agencies are beginning to
conduct these assessments as complements to compliance evaluations.

      Federal Facilities Environmental Management Reviews
                                       D-8

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       As is explained in the Federal Facilities Compliance Strategy, the National and Regional
 Federal Facilities Program has operated under the ". .. dual responsibilities of providing
 technical  assistance  and  advice to Federal Facilities to help ensure their compliance, as
 required under Presidential Executive Order 12088, and of taking enforcement actions against
 Federal Facilities...." For the past 6 years, the Federal Facilities Program in Region I has
 provided technical assistance in the form of Federal Facility conferences, regular information
 mailings, speaking engagements, training, and Environmental Management Reviews (EMRs).

       The multimedia Federal Facility staff in EPA Region I conduct the EMR reviews.  The
 purpose of the EMR is to informally meet with the environmental  program staff, tour the
 facility and discuss overall environmental management issues and compliance concerns the
 facility may have. The EMR normally takes one day after which time the EPA staff prepares
 a short report.

       Prior to the EMR visit, EPA states clearly that the visit is not an inspection; however,
 if significant/emergency  situations  are  observed  the  situation is  reported to  Regional
 enforcement staff. The date of the EMR is arranged with and at the convenience of the facility
 environmental staff and an EMR check list is provided prior to the visit.
          INFORMAL POLL REGARDING STATE CA PROGRAMS

       In  response to  an inquiry by Deputy  Director Connie Musgrove,  the  Regional
 representatives of the Multimedia Enforcement Division polled the  regions, asking what states
 separated the enforcement inspection function from compliance assistance. The unofficial
 results (13 states are not  included) showed that the majority (75 percent) of the states covered
 divide these functions between separate offices with separate staff. However, indications are
 that this "philosophy" is changing. This is demonstrated by referrals from enforcement offices
 to the compliance assistance offices. Pollution prevention functions and technical assistance
 are often contracted  out to State universities or placed  in offices other than environmental
 offices.

 Region I

       Pollution Prevention is seen as a compliance assistance program. In all of the Region
 I States except  Massachusetts, enforcement inspections and  actions are separate from
compliance assistance.  In Massachusetts, the program  known as "FIRST" combines
compliance assistance and enforcement roles and visits.  Reports to the Region indicate  that
the  inspectors are uncomfortable with the dual role and the experiment has generally been  seen
as a mistake. Once compliance assistance has been offered, inspectors are very reluctant to
                                       D-9

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 move to an enforcement role. The first act of the new environmental commissioner was to
 separate the staff back into compliance assistance and enforcement.

       In Maine, New Hampshire, and Rhode Island, pollution prevention and technical
 assistance are offered by university interns.  In Vermont, this assistance is offered by retired
 engineers. Maine is evaluating a combined role because of decreasing resources.

       In reviewing this year's MOA, Region I has set up a program called the New England
 Environmental Assistance Team (NEEAT).  This is a compliance assistance "group" drawn
 from all offices within the Region. This group is to be kept "explicitly" separate from any
 enforcement personnel.

 Region II

       New York has virtually  no enforcement  so  site  visits are essentially  for offering
 compliance assistance only. Amnesty is offered for participation in small business compliance
 programs for air. New Jersey has separate enforcement and compliance roles.

 Region III

       Pennsylvania has structural separation of enforcement and compliance assistance.
 Maryland also has  a  separate structure, but are "philosophically" moving to  a blended
 presence. West  Virginia is emphatically separate, in both offices and  functions. Virginia
separates enforcement and compliance assistance.

 Region IV

      Tennessee has separate departments with a letter of agreement between offices for the
UST program.

 Region V

      Ohio blends enforcement and compliance assistance.  Minnesota only does enforcement
for the  CAA with separate  offices for RCRA compliance and enforcement.  Dlinois has
separate enforcement and compliance assistance. Indiana has enforcement only for RCRA and
separate compliance and enforcement for the CAA.  Michigan separates enforcement for
RCRA and Wisconsin separates functions for RCRA.

Region VI
                                      D-10

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       All Regional inspectors provide compliance assistance as part of enforcement visits.
 Pollution prevention is separate in all States, and is often not in DEQ since it is technical.
 Oklahoma has a separate program, in Consumer Assistance, which has statutorily imposed
 confidentiality. Louisiana receives referrals from enforcement for small business compliance
 program from the University of New Orleans. Texas has the Office of Pollution Prevention (80
 people) which is separate from enforcement This is in response to a legislated mandate to
 reduce emissions. Small business assistance is provided in air.  Arkansas has separate offices
 and New Mexico has three agencies with traditional enforcement in DEQ.

 Region VII

       All four states have structurally separate enforcement and compliance assistance offices.

 Region VIII

       Colorado does "blended" inspections for CAA and RCRA, with separate visits but
 often by the same persons. Montana has "renaissance" inspectors. South Dakota blends roles
 for air and has renaissance RCRA inspectors. Wyoming and Utah do blended visits.

 Region IX

       The few people left in the Region that are classified as "inspectors" spend their time
 identifying violators and then assisting in case development.  These inspectors do not provide
 any compliance assistance.

       The trend is in the opposite direction at the State and local levels. They are getting
 more and more into compliance assistance. There is no quantitative information on how far
 along this trend is, but  it is pretty far, apparently.

       Facility owners appear to be having a hard time wanning up to staff who do compliance
 assistance one day and compliance inspections the next. To address this, a variety of strategies
are being employed. For example, compliance assistance staff and compliance inspector staff
reportedly wear different uniforms.  Also, compliance assistance is physically located in a
university setting in one instance. This apparently is (or may be) leading to a trend to split the
functions between the different staff.

      Calii» nia has separate offices that coordinate to make sure audits are not enforcement
targets.  Referrals are  received from enforcement inspections.  Coordinated site visits are
conducted for the Sonoma County Green Business Compliance Incentive Program.  Some
grace periods from enforcement are given. Nevada has an integrated,  confidential, small

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business compliance assistance program. Washington has separate programs with coordinated
compliance assistance for "shop sweeps" where enforcement agreed to defer for one year
against participants. Oregon has separate offices which coordinate with enforcement to avoid
overlapping with inspections- in small business technical assistance program.  Statutorily
mandated that technical lead not feed into enforcement.  The staff may have interchangeable
compliance and inspection roles and make it clear which one exists for each visit.

Region X

      All states do traditional enforcement inspections with one group.  Another group does
compliance assistance but they do not have the same people do both.
                                       D-12

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  APPENDIX E




TRAINING CHARTS

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    TRAINING FIELD PERSONNEL FOR NEW RESPONSIBILITIES IN
     COMPLIANCE MONITORING AND COMPLIANCE ASSISTANCE


E.1   Introduction

      The Training Subgroup developed several tables showing the training paths that exist
or could be established to develop the different types of personnel (shown as OUTCOMES in
this analysis) with compliance monitoring and/or compliance assistance duties to be performed
onsite at a  regulated facility.  These paths are displayed in three attachments that  are
summarized below.
Option
Option A: Separate CM from CA
Option B: CM + CA Tier I
Option C: CM + CA Tiers I & II
Appendix E Attachment(s)
Attachment 1 - Training Paths for Existing CM Inspectors, and
Attachment 3 - Training Paths for New CA Field Personnel
Attachment 2 - Training Paths for Hybrid Inspector
Attachment 2 - Training Paths for Hybrid Inspector
E.2   Matching Training Paths and Options A, B, and C

      Each training chart shows a  "path" or chronology of training that leads to an
"OUTCOME." An "OUTCOME" means the type of personnel and expertise that will result
if an individual follows the "training path" leading to that particular "OUTCOME."

      •  There are many types of field personnel/expertise, e.g., "OUTCOMES," that EPA
         could develop to meet new program needs.

      •  After an individual completes training and achieves an initial "OUTCOME," the
         individual can continue to alternative or advanced "OUTCOMES."  These
         alternative or advanced "OUTCOMES" are many and varied, and would be
         selected based on program needs for different and/or new types of inspection
         expertise, and new types of compliance assistance expertise.

      •  Training is cumulative as the individual moves along the training paths from left
         to right.

      For Option A:

      •  Attachment 1—Shows, the training paths  and  "OUTCOMES"  for EPA's
         compliance monitoring inspectors under existing training policies for basic training,

                                    —-

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          program-specific training, and training for multimedia screening inspections. This
          pertains to Option A. Most of this training already exists.

       •  Attachment 3—Shows the training paths and "OUTCOMES" that EPA  could
          develop if onsite compliance assistance is provided by EPA field personnel other
          than compliance monitoring inspectors, such as "compliance assistance specialists"
          and "compliance assistance generalists."  This too pertains to Option A.  This
          training would have to be developed.

       For Options B and C:

       •  Attachment 2—Shows the training paths and "OUTCOMES" that EPA  could
          develop if CA Tier I and/or II were integrated with or handled by compliance
          monitoring inspectors.  This is the "hybrid" inspector concept.  Training paths in
          this attachment pertain to both Options B and C. While some existing training for
          inspectors is relevant to these options, training that pertains to specific sectors,
          industrial processes, and onsite compliance  assistance would all need to be
          developed.

E.3    Using the Training Charts

       Reading from left to right, each row on the attachment shows a "path" or chronology
of training that leads to an "OUTCOME." The column entitled, "OUTCOMES,"  shows the
type of personnel and expertise that will result if an individual follows the "training path"
leading to that particular "OUTCOME."  Further to  the  right is a  second column of
"OUTCOMES," that can be achieved depending on the type of additional training that an
individual pursues.

       One way to use these charts is as follows;

       •  Find the chart that relates to Option A, B, or C;
       •  Find   the   "OUTCOMES"   column  [either  the  'initial',  or  the   later
          'alternative/advanced"fOUTCOMES"J;
       •  Review the column from top to bottom;
       •  Select the type of personnel and expertise that your program needs; and then
       •  Read the training path that leads to that "OUTCOME."

E.3.1  Attachment 1: Training Path(s) to Desired Outcome - Existing
                                      __

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       Existing Situation with Inspector Training

       Attachment 1 shows the training paths necessary to develop compliance monitoring
 inspection expertise in "new" and "existing" compliance inspectors based on policies such as
 EPA Order 3500.1, "Inspector Training and Development" (DA signed 6/88), and the policy
 on multimedia screening as part of single-media inspections (Memorandum, S. Herman,
 8/2/93), etc.

       These existing training paths pertain to Option A, under which compliance monitoring
 is completely separated from compliance assistance and EPA would train inspectors only in
 compliance monitoring expertise.

       The table below summarizes, in the "OUTCOMES"  column(s), the different types of
 compliance inspectors that EPA develops under existing training policies for single-media and
 multimedia inspection expertise.1

       Although program-specific training has been in place for several years and must be
 updated as programs change, OECA and the Regions are still developing and expanding
 training related to multimedia screening inspections, and being a leader of, or a member of,
 a multimedia inspection team.

                              SUMMARY OF OUTCOMES
-OUTCOMES"
Lead Insp with 1st Prog
Lead Insp. with 2nd Prog.



advance to
	 >
+
•+
+
or
"OUTCOMES"
Prog Expert/Lead Insp. with 1st Prog
Prog Expert/Lead Insp with 2nd Prog.
MMSI with Prog. Insp
Leader MMI Team
Member MMI Team
   'Derived from Attachment 1  TRAINING PATH(S) TO DESIRED OUTCOME - Existing MMSI = Multimedia
Screening Inspection, and MM! = Multimedia Inspection
                                       E-3

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 E.3.2  Attachment 3:  Training Path to Desired Outcome - Compliance Assistance
       Only

       Compliance Assistance Only

       Attachment 3 shows the training paths to develop EPA field personnel with expertise
 in onsite compliance assistance only, either single or multimedia.2  The "OUTCOMES"
 summarized below are based on a policy of completely separating compliance assistance from
 compliance monitoring in the field.  This is the corollary of Attachment 1, and these training
 paths and "OUTCOMES" pertain to Option A in the body of the report.

       The column entitled, "USE" on Attachment 3 includes suggestions on how compliance
 assistance personnel could be deployed depending on the size of the facility. The suggested
 "USES" distinguish between "facilities > 100 employees" and "facilities < 100 employee."

                              SUMMARY OF OUTCOMES
"OUTCOMES"
Lead CA Specialist for 1 Prog



advance to
• 	 — >•

•*•
^

or

or
•*.
"OUTCOMES"
Lead CA Specialist for Sector w/one
Prog
Leader MM CA Team
Member MM CA Team
Generalist MM CA "Specialist"
E.3.3 Attachment 2: Training Path(s) to Desired Outcome - New Role for Field
      Person: Blend CM & CA

      New  Sections in Compliance Assurance

      Attachment 2 shows the possible training paths to develop both new compliance
monitoring inspection expertise and new compliance assistance expertise to meet new program
needs. In this table, the training paths for "new" inspectors are distinguished from the
training paths for "experienced" inspectors. These training paths pertain to Options B and
C in the body of the report.

      The "OUTCOMES" summarized below are based on integrating or blending some level
of training in  onsite compliance assistance with training in compliance monitoring.  This
  'Denvedfruir. Attachment 2 TRAINING PATH(S) TO DESIRED OUTCOME - Compliance Assistance Only  MM
= Multimedia, ana CA = Compliance Assistance
                                       E-4

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means that compliance monitoring inspectors are prepared to do both compliance assistance
and compliance monitoring. Thus, creating a "hybrid inspector."
                              SUMMARY OF OUTCOMES
"OUTCOMES"
advance to
"OUTCOMES"
"New" Inspectors
New Hybrid
Lead Insp. w/1st Prog Insp w/1st Prog.
"Ex
New Hybrid
Lead Inspector w/1st Program




	 >
New Hybrid
Prog. Expert/Lead
perienced" Inspectors
	 >
+
^^^^^^^•9'

+
^^^^^^^•?"

*
HBBM^^^^B^

4-
M^-^^^a^
Sector Specialist for CM/CA w/one Prog.
MMSI w/Prog. Insp.
Leader MMI Team
Member MMI Team
Generalist MM Insp. for CM/CA
      Although the intention of these training paths is to develop "hybrid" inspectors, this
does not mean that the inspector necessarily performs both of these functions during a single
compliance monitoring inspection or site visit How these personnel are deployed is a separate
program policy/management decision that is addressed in the discussion of options in the body
of the report.
                                       E-5

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Attachment 1
TRAINING1 PATH TO DESIRED OUTCOME-Existing
New/Existing Inspectors1:
Ref.
H&S7
Training +


Basic
Inspector ••
Course

H

Proqiam
• Specific =
Minimum
Training

Program
Specific
>• Minimum :
Training
2nd
Program

Notes:
1 . Training = self study, classroom and/or OJT.
2 Annual health & safety (H&S) refresher Irai
monitoring required per EPA Orders 1440 2 6
3 EPA Order 3500 1 provides exception
experienced Inspectors Training also requi
supervisor
4 MMSI - Multimedia Screening Inspection
5. MMI - Multimedia Inspection
6. The number of program paths may be as ma
Outcome Outcome
Lead'
= Inspector
For1
Program

Lead"
Inspector
= For
2nd
Program

ning & medical
.3.
provision for
red for first line
ny as 1 5-20.
4

4

+

+

4
Program
Specific
Advanced
Training

Program
Specific
Advanced
Training

Multimedia
Screening
Inspection
Training

Experience
as Lead
Inspec- tor
for 2 or more
programs

Experience
as Lead
Inspec- tor
for 1 or more
programs

4

4
MMI9
Training
Course

MMI
Training
Course
4-

4



People Skills
with emphasis
on Leadership
Training

People Skills
Training
=

=

=
s
s

=
'rogram
Expert/
Lead
Inspector

Program
Expert/
Lead
Inspector for
2nd
Program

MMSI4
with
Program
Inspection

MMI Team
Leader

Member
MMI Team
EPA Order
3500.1

EPA Order
35001

8/2/93
Steve
Herman
Memo

6/5/91 MMI
definitions &
training
ESD/NEIC
FBC's

9/3/94 MMI
Lessons
Learned,
Roles and
Responsibil-
ities & Trg
needs
Regions

-------
Attachment 2
TRAINING1 PATH TO DESIRED OUTCOME - New Role for EPA Field Person - Blend or CM
New Inspectors':
H&S
Training'
•i
Existing Lead


N&l
Basic
Inspector
Course
Inspectors:

*


N&l
Program
Specific
Minimum Trg
lor 1 program

Program
Specific
Modules re P,.
CA SEP's.Vol
Reduction, etc
Notes
1 . Training = self study, classroom and/or OJT
2. Annual health & safety (H&S) refresher training
monitoring as required per EPA Orders 1440 2
3. EPA Order 3500 1 provides exceptions provisU
inspectors Training also required for first fine c
4. MMI -Multimedia Inspection
5. CA - Compliance Assistance
6 TyplcaDy facilities with less than 1 00 employees
universe), have either no or only a part-time em
and would likely be overwhelmed/feel threaten*
7 Another option is for this path to follow the MM
Outcome Outcome Use
=

=
New Hybrid
Lead Inspector
for 1 specific
program

New Hybrid
Lead
Inspector
for 1 specific
Program
& medical
&3
HI for experienced
upervJsore
(about 98% of the
rironmental person,
»d by a team vtelt.
Team Leader.
*



*

*

*

*

4
N&l
Program
Specific
Advanced
Training

a
Program
Expert/
Lead
Inspector


Sector
Process &
Program
Practices
Course

MultiMedia
Screening
Inspection
Training

Experience
as Lead
Inspec-tor for
2 or more
programs

Experience
as lead
Inspec- tor
for 1 or more
programs

Generalist
MMI/CA
Course
*
Sector
OJT

*

*

*
MMI
Training
Course

MMI
Training
Course

MMI
OJT

*

*


People Skills
with emphasis
on Leadership
Training

People Skills
Training


=

=

=

=

s
Sector
Specialist for
CM/CA for
specific
program

Multimedia
Screening
Inspector (with
program
Inspection)

MMI Team
Leader

Member MMI
Team

Generalist
MMInspector
for CM/CA'

Facilities >1 00
employees

Facilities >100
employees

"Facilities <1 00
employees
GXdahoma
odd)

-------
oo
TRAINING PATH TO

H&S
Training


+


Fundamenta
Is of CA
Course


t


Program •
Specific
Minimum
CA Training


3

Attachment 3
DESIRED OUTCOME - New Role of EPA Field Person - CA Only
Outcome Outcome Use
Lead CA
SpecialistFo
r 1 Program

+

+

+

+
Sector
Process A
Program
Practices
Training

Experience
as Lead CA
Specialist
for 2 or
more
programs

Experience
as Lead CA
Specialist
forl
program

Generalist
Multimedia
CA Course
4

+

+

+
Sector
OJT

MMCA
Course

MMCA
Course

Multi-media
CAOJT


+

+




People Skills
with emphasis
on Leadership
Training

People Skills
Training


B

9

-

=
Lead CA
Specialist
fora
Sector for 1
program

Team
Leader for
MMCA

Member MM
CA Team

Generalist
Multimedia
CA
Specialist


Facilities
>100
employees

Facilities
>100
employees

Facilities
<100
employees

-------
    APPENDIX F




LIST OF REFERENCES

-------
                                REFERENCES


Barclay, Rebecca A. Maintaining the Enforcement Infrastructure; Inspector Profile (1987-
      1992) and Evaluation of EPA Order 3500.1. USEPA, Office of Enforcement. February
      28 1994.

Barclay, Rebecca A. State Examples of New Roles for Field Personnel.  August 18,1995.

Barrette, Michael D.  Excerpts from Design and Implementation of Multimedia and Sector
      Strategies; Considerations for Environmental Offices Seeking Change. USEPA, Office
      of Compliance.

Callahan, Joanne.  Analysis of Legal Issues Raised by Conjoint Inspector Roles.  Draft
      memorandum. August 9,1995.

Harris, Marged. Separate Roles of Inspector and Field Representative. August 8,1995.

Kramer, Robert. Role of the Inspector-Compliance Assistance. Memorandum. July 11,1995.

Kramer, Robert. Role of the Renaissance Inspector. Memorandum. July 17,1995.

Lehr, Mark. Traditional Role of Field Personnel.  USEPA, Office of Compliance.  August 23,
      1995. Revised November 6,1995.

Maslany, Thomas.  Hanson, Glenn, and Dombrowski, John.  Definition of Compliance
      Assistance; A Continuum Including Technical Assistance.  USEPA, Region m and
      Office of Compliance. Revised November 6,1995.
                                      F-l

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