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
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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.
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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
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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
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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
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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
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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 "
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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)
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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.
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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
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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
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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.
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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.
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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.
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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.
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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
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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.
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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.
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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.
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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.
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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
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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.
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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.
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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).
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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.
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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
-------
• 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
-------
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
-------
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
-------
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,
—-
-------
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
__
-------
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
-------
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
-------
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
-------
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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