UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
        OFFICE OF CRIMINAL ENFORCEMENT, FORENSICS AND TRAINING
EPA-330/9-97-002R

Compliance-Focused Environmental
Management System -
Enforcement Agreement Guidance
August 1997
Revised January 2000
Revised December 2001
Steven W. Sisk
             NATIONAL ENFORCEMENT INVESTIGATIONS CENTER
                           Diana A. Love, Director
                              Denver, Colorado

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                                  INTRODUCTION
       Since the late 1980s, civil multimedia compliance investigations conducted by the EPA
National Enforcement Investigations Center (NEIC) have increasingly involved identifying causes
of observed noncompliance. In a significant number of cases, the causes arise from inadequate
environmental management systems (EMSs).1 NEIC, in response, developed key elements for a
compliance-focused EMS (CFEMS)  model, which have been used as  the  basis for EMS
requirements in several settlement agreements. The purpose of this guidance is to present those key
elements and to show, through the attached example, how they can be incorporated into a settlement
agreement.

       To achieve maximum benefit from the CFEMS elements, the overall EMS in which they are
incorporated should embody the "plan, do, check, and act" model for continuous improvement.
Consequently, the compliance-focused EMS model described here is intended to  supplement, not
replace, EMS models developed by voluntary consensus standards bodies, such as the ISO 14001
EMS standard developed by the International Organization for Standardization.

       A  settlement agreement  that requires an  EMS should  include  a requirement that the
organization conduct  an initial  review of its  current EMS, followed by development  of a
comprehensive CFEMS  that must be documented in a manual.   The EMS manual must contain
policies, procedures, and standards for the 12 key elements, at a minimum, and should also identify
other, more detailed procedures and processes (e.g., inspections and self-monitoring) that maybe
located elsewhere at the  facility.  After the organization has had sufficient time to implement and
refine the EMS (usually 2 to 3  years), the agreement  should require at least one EMS audit by an
independent third-party auditor, with results reported to both the organization and EPA. However,
additional audits may be required, as individual circumstances dictate.
          The International Organization for Standardization (ISO) defines an EMS as "that part
          of the overall management system which includes organizational structure, planning
          activities, responsibilities, practices, procedures, process es and resources for developing,
          im plem enting, achieving, reviewing, and m aintain ing [the organ ization 's] environ m ental
          policy."   The EMS  provides the structure by  which specific activities  related  to
          en viron m ental protection and compliance can be effectively and efficiently carried out.

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       The intended result of this approach is twofold: first, to have the organization develop an
EMS that will both improve its compliance with applicable environmental requirements and, second,
to improve its environmental performance by achieving the organization's environmental targets and
objectives.

       The 12 key elements of a CFEMS addressed in this guide were compiled from a number of
sources: EMS assessment protocols developed by Deloitte and Touche LLP of San Francisco for
the Global Environmental Management Initiative (1992) and an industrial client (1994); ISO 14001
"Environmental management systems - Specification with guidance for use" (1996); National
Sanitation Foundation EMS standards (NSF 110-1995); a November 14, 1986 EPA memorandum
entitled "Final EPA Policy on the Inclusion of Environmental Auditing Provisions in Enforcement
Settlements"; and the "due diligence" provisions of the current EPA "audit policy" (60 FR 66710
published December 22,1996). Additional input was obtained through NEIC participation in several
EPA EMS-related work groups including the Environmental Leadership Program (ELP) Pilot Project
workgroup tasked with  defining the EMS requirements for the full-scale program.

       The current revision involved enhancing several of the elements.  Refinement continues
through settlement  negotiations,   and discussions  with EPA  staff,  EMS consultants,  and
environmental personnel from several companies with medium-size and large facilities.

       A general EMS provision for a settlement agreement and the 12 key elements are presented
in the  following sections.  The prescriptive style has been retained to facilitate future use in
settlement agreements.1  Example consent decree language incorporating the EMS improvement
approach described above is presented in Attachment A.
          The 12 elements are closely inter-related components of an EMS for which subsystems
          and procedures must be developed and fully integrated if the entire program is to be
          effective.  They are usually included in settlement agreements as a  complete group;
          however, individual elements may need to be m odified to reflect site-specific conditions
          and circumstances.

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GENERAL EMS PROVISION


       A comprehensive compliance-focused Environmental Management System (EMS) shall be

developed, implemented,  and maintained by the organization.  The EMS shall address, at a

minimum, the 12 key elements listed  below,  and shall be  described in an "Environmental

Management System Manual."


ENVIRONMENTAL MANAGEMENT SYSTEM MANUAL PROVISIONS


The EMS Manual shall be organized to clearly address the following key elements.


1.     Environmental Policy

       a.     This policy, upon which the EMS is based, must clearly communicate management
             commitment to  achieving compliance with applicable federal, state, and local
             environmental statutes, regulations, enforceable agreements, and permits (hereafter,
             "environmental  requirements") and  continual  improvement in environmental
             performance. The policy should also state management's intent to provide adequate
             personnel and other resources for the EMS.


2.     Organization, Personnel, and Oversight of EMS

       a.     Describes, organizationally, how the EMS is implemented and maintained.

       b.     Includes organization charts  that identify  units,  line management, and  other
             individuals  having  environmental  performance  and  regulatory  compliance
             responsibilities.

       c.     Identifies and defines specific  duties, roles, responsibilities, and authorities of key
             environmental program personnel in implementing and sustaining the EMS (e.g.,
             could include position descriptions and performance standards for all environmental
             department personnel,  and excerpts from others having  specific environmental
             program and regulatory compliance responsibilities).

       d.     Includes ongoing means of communicating environmental issues and information to
             all organization personnel, on-site  service  providers, and  contractors, and for
             receiving and addressing their  concerns.

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3.     Accountability and Responsibility

       a.      Specifies accountability  and  environmental responsibilities of  organization's
              managers, on-site service providers, and contractors for environmental protection
              practices, assuring compliance, required reporting to  regulatory agencies,  and
              corrective actions implemented in their area(s) of responsibility.

       b.      Describes incentive programs for managers and employees to perform in accordance
              with compliance policies, standards and procedures.

       c.      Describes potential consequences for departure from specified operating procedures,
              including liability for civil/administrative  penalties  imposed as  a result of
              noncompliance.
4.     Environmental Requirements

       a.      Describes process for  identifying, interpreting,  and effectively  communicating
              environmental requirements to affected organization personnel, on-site service
              providers, and contractors, and then ensuring that facility activities conform to those
              requirements  (i.e., ongoing  compliance monitoring).  Specifies procedures for
              prospectively identifying and obtaining information  about changes and proposed
              changes in environmental requirements, and incorporating those changes into the
              EMS (i.e., regulatory "change management").

       b.      Establishes and  describes processes to ensure communication with  regulatory
              agencies regarding environmental requirements and regulatory compliance.
5.     Assessment, Prevention, and Control

       a.      Identifies an ongoing process for assessing operations, for the purposes of preventing
              and controlling  releases,  ensuring  environmental protection, and  maintaining
              compliance with statutory and regulatory requirements. This section shall describe
              monitoring and measurements, as appropriate, to ensure sustained compliance. It
              shall also include  identifying operations  and waste  streams where equipment
              malfunctions and deterioration, operator errors, and discharges or emissions may be
              causing, or may lead to: (1) releases of hazardous waste or other pollutants to the
              environment,  (2) a threat to human health or the environment, or (3) violations of
              environmental requirements.

       b.      Describes process  for identifying operations and activities where  documented
              standard operating practices (SOPs)  are needed to prevent potential violations or
              pollutant releases, and defines a uniform process  for developing,  approving and
              implementing the SOPs.

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       c.      Describes  a system for conducting and documenting routine, objective, self-
              inspections by department supervisors and trained staff,  especially at locations
              identified  by the process described in a. above, to check for  malfunctions,
              deterioration, worker adherence to SOPs,  and unauthorized releases.

       d.      Describes process for ensuring input of environmental  requirements (or concerns)
              in planning, design, and operation of ongoing, new,  and/or changing buildings,
              processes, equipment, maintenance activities, and products (i.e., operational "change
              management").
6.      Environmental Incident and Noncompliance Investigations

       a.      Describes standard procedures and requirements for internal and external reporting
              of potential violations and release incidents.

       b.      Establishes procedures for investigation, and prompt and appropriate correction of
              potential violations.  The  investigation process includes root-cause analysis of
              identified problems to aid in developing the corrective actions.

       c.      Describes  a system for development, tracking, and  effectiveness verification of
              corrective and preventative actions.

       d.      Each of these  procedures shall specify self-testing of such procedures,  where
              practicable.
7.     Environmental Training, Awareness, and Competence

       a.      Identifies specific education and training required for organization personnel, as well
              as process for documenting training provided.

       b.      Describes  program to ensure that organization  employees  are aware  of its
              environmental policies and procedures, environmental requirements, and their roles
              and responsibilities within the environmental management system.

       c.      Describes  program for  ensuring  that personnel  responsible for meeting  and
              maintaining compliance with environmental requirements are competent on the basis
              of appropriate education, training, and/or experience.
8.     Environmental Planning and Organizational Decision-Making

       a.      Describes  how  environmental planning will be integrated into organizational
              decision-making, including plans and decisions on capital improvements, product
              and process design, training programs, and maintenance activities.

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       b.     Requires establishing written targets, objectives, and action plans by at least each
             operating organizational subunit with environmental responsibilities, as appropriate,
             including those for contractor operations conducted at the facility, and how specified
             actions will be tracked and progress reported. Targets and objectives must include
             actions which reduce the risk of noncompliance with environmental requirements.

9.      Maintenance of Records and Documentation

       a.     Identifies the types of records developed in support of the EMS (including audits and
             reviews), who maintains them and where, and protocols for responding to inquiries
             and requests for release of information.

       b.     Specifies the  data management systems  for  any internal  waste tracking,
             environmental data, and hazardous waste determinations.

       c.     Specifies document control procedures.
10.    Pollution Prevention Program

       a.     Describes an internal program for preventing, reducing, recycling, reusing, and
             minimizing  waste and emissions, including procedures  to  encourage material
             substitutions. Also includes mechanisms for identifying candidate materials to be
             addressed by program and tracking progress.
11.    Continuing Program Evaluation and Improvement

       a.     Describes program for periodic (at least annually) evaluation of the EMS, including
             incorporating the results of the assessment into program improvements, revisions to
             the manual, and communicating findings and action plans to affected employees, on-
             site service providers, and contractors.

       b.     Describes a program for periodic audits (at least annually) of facility compliance with
             environmental requirements by an independent auditor(s). Audit results are reported
             to upper management and potential violations are addressed through the process
             described in element 6 above.
12.    Public Involvement/Community Outreach

       a.     Describes a program for ongoing community education and involvement in the
             environmental aspects of the organization's operations and general environmental
             awareness.

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         ATTACHMENT A

EXAMPLE CONSENT DECREE LANGUAGE
      FOR EMS IMPROVEMENTS

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                                     Attachment A
        EXAMPLE CONSENT DECREE LANGUAGE FOR EMS IMPROVEMENTS

                                  I. Definitions [includes  only  those definitions  that are
specifically relevant to the EMS Improvement provisions]

       a)  "Action Plan" shall mean a comprehensive plan for bringing the Facility, as defined
below, into full conformance with the EMS provisions specified in Paragraph 4 of this Consent
Decree  and fully addressing all Audit Findings identified in the Audit Report.
       b) "Audit Finding" shall mean a written summary of all instances of non-conformance with
the provisions of Paragraph 4 of this Consent Decree noted during the EMS audit, and all areas of
concern identified during the course of the audit that, in the Consultant Auditor's judgement, merits
further review or evaluation for potential EMS, environmental, or regulatory impacts.
       c)  "Audit Report" shall mean a report setting forth the Audit Findings resulting from the
audit of a Facility by the Consultant Auditor, which meets  all of the requirements set forth in
Paragraph 16 of this Consent Decree.
       d)  "Consultant Auditor" shall mean the independent third-party hired by the COMPANY
and approved by EPA to  conduct an EMS audit at the Facility, and who meets the requirements set
forth in Paragraph 9 of the Consent Decree.
       e) "Contractor" shall mean [contractor one name], any successor to [contractor one name]
located on facility, [contractor two name], any successor to [contractor two name]  located at the
Facility and contractors providing the following services at the facility: [list of specific services such
as asbestos removal; demolition; painting; waste handling, including vacuum truck operators; and
construction].
       f) "Corrective Measures" shall mean those measures or actions appropriate to bring a Facility
into full conformance with the EMS provisions of Paragraph 4 of this Consent Decree.
       g)   "Environmental Requirements"  shall mean all applicable federal, state, and local
environmental statutes and regulations, including permits and enforceable agreements between the
COMPANY and the respective environmental regulatory agency(ies).
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       h) "Facility" as used in the term "the Facility" or in the term "the COMPANY'S Facility"
shallmeanthe [COMPANYname], facility locatedat [facility address, e.g., 600 South Kipling Road
in Denver, Colorado].
       i) "Initial Auditor(s)" shall mean individual(s) meeting the requirements of Paragraph A. 1.
below, who are selected and/or contracted to perform the Initial EMS Review and Evaluation.

A.     Environmental Management System

       1.      Upon the effective date of this Decree, the COMPANY shall provide to EPA in
              writing: (a) the name, affiliation and address of the Initial Auditor(s) selected by the
              Defendant to conduct the Initial EMS Review and Evaluation; (b) evidence that each
              Initial Auditor(s) satisfies the qualification requirements of ISO 14012 (First edition,
              1996-10-01), and that the team conducting the Initial EMS Review and Evaluation,
              in composite, has a working process knowledge of Facility or similar operations, and
              has a working knowledge of federal and state environmental requirements  which
              apply to the Facility; and (c)  the schedule, including milestones, for conducting the
              Initial EMS Review and Evaluation.

       2.      The COMPANY shall direct the Initial Auditor(s) identified pursuant to paragraph
              A.I  above to conduct  and  complete  an Initial EMS Review  and Evaluation
              (commonly referred to as a  "gap" analysis) for both COMPANY and Contractor
              operations. The designated Initial Auditor(s) shall review and evaluate the current
              EMS, using the elements set forth in paragraph A.4. below, to identify where systems
              or subsystems have not been adequately developed or implemented. The results of
              the Initial EMS Review and Evaluation shall be documented in a report prepared by
              the Initial  Auditor(s)  and provided to the COMPANY.   This report  shall also be
              provided to EPA, upon request.

       3.      Based on the Initial EMS Review and Evaluation results and other information, the
              COMPANY shall develop a Comprehensive EMS for the Facility addressing, at a
              minimum, the twelve key elements presented in paragraphs A.4.a,  below.  The
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             purpose of developing the Comprehensive EMS is to assist the COMPANY in its
             efforts to comply with federal, state and local environmental requirements.

       4.     Within two hundred seventy (270) days of the effective date of this Decree, the
             COMPANY shall complete the preparation of an "Environmental Management
             System Manual" which shall describe and document the Comprehensive EMS and
             contain an EMS implementation schedule  for each  of the described systems and
             subsystems not already implemented.   For  each of the elements identified in
             Paragraph A.4.a, below, as appropriate, the manual shall describe the EMS, in detail,
             by explaining how the activity or program is or will be: (a) established as a formal
             system, subsystem or task, (b) integrated into ongoing department operations, and (c)
             continuously evaluated and improved.

             a.     The Environmental Management System Manual shall describe respective
                   management systems, subsystems, and tasks for the following elements:

NOTE: The 12 key elements of the compliance-focused EMS  (or alternate standard) are
inserted here.

       5.     The COMPANY shall submit the entire Environmental Management System Manual
             to EPA for review and comment within thirty (30) days of its completion.

       6.     EPA will provide comments on the Environmental  Management System Manual
             within ninety (90) days of EPA's receipt of such Manual unless EPA notifies the
             COMPANY in writing that additional time  for review is required.

       7.     The COMPANY shall, within thirty (30) days of receipt of EPA's comments on the
             proposed EMS Manual, submit to EPA a supplement to the EMS Manual or a written
             response, as appropriate, addressing EPA's comments.
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8.      Upon the COMPANY'S  receipt of EPA's comments, The  COMPANY shall
       immediately commence implementation of the EMS in accordance with the schedule
       contained in the EMS Manual. The COMPANY shall submit implementation status
       reports to EPA on a quarterly basis (i.e., reports due in January, April, July, and
       October), beginning not earlier than sixty (60) days from receipt of EPA's comments
       on the manual.  The status reports shall be due on the 15th day of the reporting month
       and every quarter thereafter until implementation is complete. [Status report details
       may be added here.]

9.      Within twenty (20) months of the  date of entry of this  Consent Decree,  the
       COMPANY shall propose to EPA for approval, the selection of an independent
       Consultant  Auditor who  (a) was not involved in the Initial EMS  Review and
       Evaluation, (b) meets the qualification requirements of ISO 14012 (First edition,
       1996-10-01); and (c) has expertise and competence in the regulatory programs under
       federal and state environmental laws. The Consultant Auditor shall be paid by the
       COMPANY in an amount sufficient to fully carry out the provisions of this Consent
       Decree. The Consultant Auditor must not directly own any stock in the COMPANY
       or in any parent or subsidiary, and must have no other direct financial stake in the
       outcome  of the EMS audit conducted pursuant to this Consent Decree.  The
       Consultant Auditor must be capable of exercising the same independent judgment
       and discipline that a certified public accounting firm would be expected to exercise
       in auditing a publicly held corporation. If the COMPANY has any other contractual
       relationship with the Consultant Auditor, the COMPANY shall disclose to EPA such
       past or existing contractual relationships. EPA will notify the COMPANY in writing
       of its approval or disapproval as expeditiously as possible.

10.     If EPA  determines  that the proposed  Consultant Auditor does not meet  the
       qualifications set forth  in  the previous paragraph,  or that  past  or  existing
       relationships with the Consultant Auditor would affect the Consultant Auditor's
       ability to  exercise the independent judgment and discipline required to conduct the
       EMS Audit, such Consultant Auditor shall be disapproved and another Consultant
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      Auditor shall be  proposed by the COMPANY within  thirty (30) days of the
      COMPANY'S receipt of EPA's determination.

11.    THE COMPANY shall identify any  and all site-specific safety and training
      requirements for the Consultant Auditor(s), and shall ensure that the requirements are
      met prior to conducting the audit.

12.    THE COMPANY shall require the Consultant Auditor to prepare a draft EMS Audit
      Plan and provide  it to THE COMPANY and EPA for review and comment. The
      draft EMS Audit  Plan shall be submitted within two (2) months after the EPA's
      approval of the Consultant Auditor.

13.    Within 30 days of receipt of EPA's comments the COMPANY shall direct the
      Consultant Auditor to develop a final audit plan that incorporates EPA's comments
      which shall be followed during conduct of the EMS Audit performed pursuant to this
      Consent Decree. The COMPANY  shall  direct the  Consultant Auditor to
      concurrently submit the final EMS Audit Plan to EPA and the COMPANY upon
      completion. The audit shall be completed within 60 days of submission of the final
      EMS audit plan.

14.    The COMPANY shall require the Consultant Auditor to conduct an EMS Audit to
      evaluate  the  adequacy of EMS  implementation, from  top management  down,
      throughout each major organizational unit at the Facility, and to  identify where
      further improvements should be  made to the EMS.   The EMS Audit shall be
      conducted in accordance with ISO  14011  (First edition,  1996-10-01), using ISO
      14010 (First edition, 1996-10-01) as supplemental guidance. The Consultant Auditor
      shall assess conformance with the elements specified in Paragraph 4 above and with
      the EMS Manual, and shall determine the following:
      a.     Whether there is a defined system, subsystem, program, or planned task for
             the respective EMS element;
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      b.     To what extent the  system,  subsystem,  program,  or task has been
             implemented,  and is being maintained
      c.     Adequacy of  each  Operation's internal  self-assessment procedures  for
             programs and tasks composing the EMS;
      d.     Whether the COMPANY  is effectively communicating environmental
             requirements to affected parts of the organization, Contractors and on-site
             service providers;
      e.     Whether further improvements should be made to the EMS;
      f.     Whether there are  observed  deviations from the COMPANY'S written
             requirements or procedures; and,
      g.     Whether continuous improvement is occurring
15.    Designated representatives from EPA and other environmental regulatory agencies
      may participate in the EMS audit as observers. The COMPANY shall make timely
      notification to designated regulatory contacts regarding audit scheduling in order to
      make arrangements for observers to be present. COMPANY personnel may also
      participate in the on-site audits as an observer(s), but may not interfere with the
      independent judgement of the Consultant Auditor.

16.     Audit Reports. The COMPANY shall direct the Consultant Auditor to develop and
      concurrently submit an Audit Report to the COMPANY and EPA for the EMS Audit
      as required by this Consent Decree, within sixty (60) days following the completion
      of the on-site portion of the audit. The Audit Report shall present the Audit Findings
      and shall, at a minimum, contain the following information:
             a. Audit scope, including the period of time covered by the audit;
             b. The date(s) the on-site portion of the audit was conducted;
             c. Identification  of audit team members;
             d. Identification of the COMPANY representatives and regulatory agency
             personnel observing the audit;
             e. The distribution for the EMS Audit Report;
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             f. A summary of the audit process, including any obstacles encountered;
             g. Detailed Audit Findings, including the basis for each finding and each
             Area of Concern identified;
             h.  Identification of any Audit Findings corrected or Areas  of Concern
             addressed during the audit, and a description of the corrective measures and
             when they were implemented; and,
             i. Certification by the Consultant Auditor that the EMS Audit was
             conducted in accordance with the provisions of this Decree.

17.    If the Consultant Auditor believes that additional time is needed to analyze available
       information or to gather additional information, the COMPANY may request that
       EPA grant the Consultant Auditor such additional time as needed to prepare and
       submit the Audit Report. EPA's decision whether to grant additional time shall be
       final and unreviewable.

18.    Follow-Up Corrective Measures. Upon receiving the Audit Report, the COMPANY
       shall conduct a root cause analysis of the identified Audit Findings, as appropriate,
       and shall investigate all Areas of Concern. Within sixty (60) days of receiving the
       Audit Report for each Facility, the COMPANY shall develop and submit to EPA for
       review and comment, an Action Plan for expeditiously bringing the Facility into full
       conformance with the EMS provisions in Paragraph 4 of this Decree and the EMS
       Manual, and fully addressing all Areas of Concern. The Action Plan shall include
       the result of any root cause analysis, specific deliverables, responsibility assignments,
       and an implementation schedule.

19.    EPA shall review the Action Plan and provide written comments within thirty (30)
       calendar days following receipt.

20.    After making any necessary modifications to the EMS Action Plan based on EPA
       comments, if any, the COMPANY shall implement the Action Plan in accordance
       with the schedules set forth therein
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21.     Within thirty (30) days of after all items or activities in the Action Plan have been
       completed,  the COMPANY  shall submit  a  written Action  Plan Completion
       Certification to EPA signed by the Facility manager (i.e., plant manager).
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