UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
    OFFICE OF CRIMINAL ENFORCEMENT, FORENSICS AND TRAINING
EPA- 330 / 9- 9 7- 002

Compliance-Focused Environmental
Management System -
Enforcement Agreement Guidance
August 1997
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 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.   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 compliance-focused EMS 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 may be 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
         The International Organization for Standardization (ISO) defines an EMS as "thatpart
         of the overall management system which includes organizational structure, planning
         activities, responsibilities, practices, procedures, processes and resources for developing,
         implementing,  achieving,  reviewing,  and  maintaining  [the  organization's]
         environmental policy." The EMS provides the structure by which specific activities
         related to environmental protection and compliance can be effectively and efficiently
         carried out.

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organization and EPA.  However, additional audits may be required, as individual
circumstances dictate.

      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 goals and objectives.

      The 12 key elements of a compliance-focused EMS 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" definition in 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. Refinement of the key
elements and the EMS improvement  approach 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

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facilitate future use in settlement agreements.1 Example consent decree language
incorporating  the  EMS improvement  approach described above is presented in
Attachment A. Questions concerning this document should be directed to Steve Sisk
of NEIC at (303) 236-3636 x540.

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.     Management Policies and Procedures
            a.     Organization's Environmental Policy - This policy must clearly
                  communicate   management  commitment  to   environmental
                  performance, including compliance with applicable federal, state,
                  and  local  environmental  statutes,  regulations,  enforceable
                  agreements,   and  permits   (hereafter,  "environmental
                  requirements").
            b.     Site-specific Environmental Policies and Standards
         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 modified to reflect site-specific conditions
         and circumstances.

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            !      Compilation  of  general  principles,  policies,  rules, and
                  procedures for site-specific environmental practices.

            !      Includes  process   for   developing,   approving,  and
                  communicating standard operating practices for activities
                  having potentially adverse environmental or regulatory
                  compliance impacts.

            !      Clearly   identifies   organizational  responsibilities  for
                  maintaining  regulatory  compliance,  including  required
                  reporting to regulatory agencies.

            !      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.

            !      Establishes and describes processes to ensure sustained
                  interaction with regulatory  agencies, and  within the
                  organization   (e.g.,  between  the   various  divisions,
                  contractors, and the  Environmental Control Department)
                  regarding environmental requirements and  regulatory
                  compliance.

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  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).

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3.     Accountability and Responsibility

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

            b.     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 ensuring that facility activities conform to those requirements.
                  Specifies procedures for prospectively identifying and obtaining
                  information   about  changes    and  proposed  changes   in
                  environmental requirements, and incorporating those changes into
                  the EMS.

      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 maybe
                  causing, or may lead to: (1) releases of hazardous waste or other
                  pollutants to the environment, or (2) a threat to human health or
                  the environment.  Finally, the process shall include performing
                  root-cause  analysis of identified problems in order to develop
                  remedies and prevent recurring issues.

            b.     Describes process for identifying operations and activities, which
                  could result in adverse environmental impacts and/or regulatory
                  noncompliance, where documented standard operating practices
                  need to be developed (see element l.b.).

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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.

      d.     Describes  process  for   ensuring  input  of  environmental
            requirements (or concerns) in planning, design, and operation of
            ongoing, new, and/or changing buildings, processes, maintenance
            activities, and products.

6.     Environmental Incident and Noncompliance Investigations

      a.     Describes standard procedures and requirements for incident and
            noncompliance reporting.

      b.     Establishes procedures for investigation of potential violations or
            noncompliance.

      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.     Planning for Environmental Matters

      a.     Describes how  environmental planning will  be  integrated into
            other plans developed by organizational subunits, as appropriate
            (e.g., capital improvements, training,  maintenance).

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      b.     Requires establishing written goals, 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.

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.

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 addressedby
            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.

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

A.    Environmental Management System

      1.     Upon the effective date of this Decree, Defendant shall provide to EPA
            and the state  in writing  the name, affiliation and address  of the
            individual(s) selected by the  Defendant to  conduct  the Initial EMS
            Review and Evaluation, how such individual(s) satisfies the proficiency
            criteria  described  in the [reference  standard, e.g.,  ISO  14012
            "Guidelines for environmental  auditing - Qualification criteria for
            environmental  auditors" or American Society for Testing of Materials
            ("ASTM") Provisional Standard 12-95 - Provisional Standard Guide for
            Study and Evaluation of An Organizations Environmental Management
            Systems], and  the schedule, including milestones,  for conducting the
            Initial EMS Review and Evaluation.

      2.     The individual identified pursuant to paragraph A. 1  above shall conduct
            an initial review and evaluation of  the current  EMS relating to the
            operations of both  [the company]  and Contractors, as  defined in
            paragraph A. 17 below.  The Defendant shall review and evaluate the
            current EMS to identify gaps using the elements set forth in paragraphs
            A.4.a(l) through (12) below.

      3.     Based  on the  Initial  Review  and Evaluation results  and  other
            information, Defendant shall prepare a written Comprehensive EMS for
            the Facility1 addressing, at a minimum, the twelve key elements pre-
   1      "Facility" is a defined term in each settlement agreement.
                                    A-1

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           sented in paragraphs A.4.a(l) through (12) below.  The purpose of
           preparing the Comprehensive EMS is to assist [the company] in its
           program to comply with federal, state and local environmental statutes,
           regulations, permits, and enforceable agreements (hereinafter in this
           Section A  (Environmental  Management  System)  referred to  as
           "environmental requirements").

      4.    Within two hundred seventy (270) days of the effective date of this
           Decree, Defendant shall complete the preparation of an "Environmental
           Management System Manual" which shall include the Comprehensive
           EMS, an EMS implementation schedule and rationale identifying pro-
           posed changes to the current EMS and explaining what the changes are
           intended  to  accomplish.  For  each of the elements  identified  in
           paragraphs A.4.a(l) through (12) below, as appropriate, the manual shall
           provide a detailed blueprint of the EMS, describing how the activity or
           program is or will be: (a) established as a formal system,  (b) integrated
           into ongoing department operations, and (c) continuously evaluated and
           improved.

           a.    Defendant shall develop an Environmental Management System
                 Manual - The EMS Manual shall address the following elements:

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

      5.    Defendant shall  submit the complete  Environmental  Management
           System Manual to EPA  and the state for review and comment within
           thirty (30) days of its completion.
                                    A-2

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6.     EPA will provide its and the state's comments on the Environmental
      Management System Manual within ninety (90) days of EPA's receipt of
      such Manual unless EPA or the state notifies the Defendant in writing
      that additional time for review and approval is required.  The state's
      review  and EPA's review and comment will not  extend beyond one
      hundred and fifty (150) days of EPA's receipt of the Environmental
      Management System Manual.

7.     [The company] shall, within thirty (30) days of receipt of EPA's and the
      state's comments on the proposed EMS Manual, submit to EPA and the
      state a supplement  to the  EMS Manual or a  written response, as
      appropriate, addressing EPA's and the state's comments.  The  EMS
      Manual shall contain an implementation schedule for initiating each
      component of the system not already implemented.

8.     Within thirty (30) days of completing their reviews, EPA and the  state
      will return the supplement or written response, and the EMS Manual to
      the Defendant.

9.     Upon Defendant's receipt of EPA's and the state's comments, Defendant
      shall immediately commence implementation of the EMS in accordance
      with the schedule contained in the EMS Manual.  The Defendant  shall
      submit status reports regarding the implementation to EPA and the
      state, on a quarterly basis, beginning no later than thirty (30) days from
      receipt of EPA's and the state's comments  on the manual.  The status
      reports shall be due on the 15th day of the first month of the next quarter
      and every quarter thereafter until implementation is complete.
                              A-3

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10.    Within twenty (20) months of the  effective date of this Decree, the
      Defendant shall provide to EPA and the state in writing (1) the name,
      affiliation, and address of the independent 3rd party consultant selected
      by the defendant to  perform a Comprehensive EMS Review and
      Evaluation at the Facility; (2)  how the selected independent 3rd party
      consultant satisfies the independence and proficiency criteria in the
      [reference standard, e.g., ISO 14012 "Guidelines for environmental
      auditing - Qualification criteria for environmental auditors" American
      Society for Testing of Materials (ASTM) Provisional Standard 12-95 -
      Provisional  Standard  Guide  for  Study  and  Evaluation of  An
      Organizations Environmental Management Systems]; and (3) a schedule,
      including milestones, for conducting the review.  The review shall be
      performed in accordance with the [reference standard, e.g., ISO 14011
      "Guidelines for environmental  auditing - Audit procedures - Auditing of
      environmental management systems", or ASTM Provisional Standard 12-
      95 -  Provisional Standard Guide for Study and Evaluation of An
      Organizations Environmental Management Systems]. The Defendant's
      contract with the  3rd party consultant shall require such 3rd  party
      consultant to review and evaluate the implementation of the systems,
      policies, and procedures described in the EMS Manual, using the EMS
      elements set forth in paragraphs A.4.a(l) through (12) above as criteria
      for the evaluation.

11.    Within ninety (90) days after  submitting the notification required by
      Paragraph A. 10, above, the independent 3rd party consultant shall
      complete the Comprehensive EMS Review and Evaluation and submit a
      Comprehensive EMS Review and Evaluation Report to [the company],
      EPA  and the state, simultaneously.  This report shall include (1) the
      results of the auditor's review and evaluation of the facility EMS relating
                              A-4

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     to both [the company] and Contractor operations and (2) the auditor's
     recommendations for improvements to the Comprehensive EMS.

12.   Within thirty (30) days  after receipt of the independent  3rd  party
     consultant  Comprehensive  EMS  Review  and Evaluation  Report,
     Defendant shall provide to EPA and the state for review and comment a
     written response to  the  recommendations presented in  that Report
     identifying  those recommendations it does and does  not intend to
     implement  and/or plans to  implement with  modification(s).   The
     Defendant shall include in its response an explanation of its rationale for
     not implementing and/or modifying the independent 3rd party consultant
     recommendations and a schedule for implementing changes to the EMS
     based on the Comprehensive EMS Review and Evaluation.

13.   EPA will provide its  and the state's comments on the Comprehensive
     EMS  Review and Evaluation Report within ninety (90) days of EPA's
     receipt of such Plan unless EPA or  the state notifies the Defendant in
     writing that additional time for review and comment is required. The
     state's review and EPA's review and comment will not extend beyond one
     hundred and fifty (150) days of EPA's receipt of the Comprehensive EMS
     Review and Evaluation Report.

14.   [The company] shall,  within thirty (30) days of receipt of EPA's and the
     state's comments on  the Comprehensive EMS Review and Evaluation
     Report, submit  to EPA  and the state  a  written  response to such
     comments.

15.   Within thirty (30) days of completing their review of the Defendant's
     response to EPA's and the  state's comments, EPA and the state will
                             A-5

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      return the Comprehensive EMS Review and Evaluation Report to the
      Defendant.

16.    Any submissions made to EPA or the state pursuant to this Section A
      shall not be interpreted as a waiver or limitation of the United state's or
      the state of [state name] authority to enforce any federal, state, or local
      statute or regulation including permits.

17.    For purposes of this Environmental Management System section, the
      term "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 Defendant's 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].

18.    Confidential  Business  Information  ("CBI")  - Defendant  may,  if
      appropriate, declare portions of the EMS Manual, rationale or underlying
      information, to be confidential pursuant to 40 C.F.R. Part 2.
                               A-6

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