FY2012
Office of Enforcement and
Compliance Assurance (OECA)
Final
National Program Manager (NPM) Guidance
April 30,2011
Publication Number:
300F1105
FY2012 OECA NPM Guidance Page 1
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Table of Contents
EXECUTIVE SUMMARY 4
A. PROGRAM OFFICE 4
B. INTRODUCTION/CONTEXT 4
C. PROGRAM PRIORITIES 4
E. CROSS CUTTING STRATEGIES IN THE FY2011-2015 STRATEGIC PLAN 8
F. SIGNIFICANT CHANGES FROM FY2011 10
G. CONTACTS 10
SECTION I: OECA GUIDANCE DEVELOPMENT AND FEEDBACK PROCESS 12
SECTION II: SPECIFIC ENVIRONMENTAL JUSTICE PROGRAM PERFORMANCE EXPECTATIONS
12
1. Advance EJ goals through Selection and Implementation of National Enforcement Initiatives 13
2. Advance EJ Goals Through Targeting and Development of Compliance and Enforcement Actions.... 13
3. Enhance Use of Enforcement and Compliance Tools to Advance EJ Goals in Regions' Geographic
Initiatives to Address Overburdened Communities 14
4. Seek Appropriate Remedies in Enforcement Actions to Benefit Vulnerable and Overburdened Communities
and Address EJ Concerns 15
5. Enhance Communication with Affected Communities and the Public Regarding EJ Concerns and the
Distribution and Benefits of Enforcement Actions, As Appropriate 16
SECTION III: KEY PROGRAM PRIORITIES AND STRATEGIES TO ADDRESS ENVIRONMENTAL
PROBLEMS FROM AIR POLLUTION 18
A. CLEAN AIR ACT (CAA) 18
1. Implement National Enforcement Initiatives 18
2. Linkwith Top Office of Air andRadiation Priorities 19
3. Aggressively Go After Pollution Problems That Make a Difference in Communities 20
4. Reset Our Relationships with States 22
5. Improve Transparency 23
6. Relevant Policies and Guidances 23
SECTION IV: KEY PROGRAM PRIORITIES AND STRATEGIES TO ADDRESS ENVIRONMENTAL
PROBLEMS FROM WATER POLLUTION 25
A. CLEAN WATER ACT (CWA) 25
1. Clean Water Act Action Plan 25
2. High Priority Performance Goal 26
3. Implement National Enforcement Initiatives 27
4. Linkwith Top Office of Water Priorities 29
5. Aggressively Go After Pollution Problems That Make a Difference in Communities 29
6. Reset Our Relationships with States 34
7. Improve Transparency 35
8. Relevant Policies and Guidances. 35
B. SAFE DRINKING WATER ACT (SOWA) 36
1. Linkwith Top Office of Water Priorities 36
2. Aggressively Go After Pollution Problems That Make a Difference in Communities 37
4. Improve Transparency 38
5. Relevant Policies and Guidances. 38
SECTION V: KEY PROGRAM PRIORITIES AND STRATEGIES TO ADDRESS ENVIRONMENTAL
PROBLEMS FROM WASTE, TOXICS, AND PESTICIDES POLLUTION 39
A. RESOURCE CONSERVATION AND RECOVERY ACT (RCRA) 39
1. Statutory and Regulatory Requirements 39
2. Implement National Enforcement Initiatives 40
FY2012 OECA NPM Guidance Page 2
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3. Link with Top OSWER Priorities 41
4. Aggressively Go After Pollution Problems That Make a Difference in Communities 41
5. Reset Our Relationships with States 44
6. Improve Transparency 46
B. Toxic SUBSTANCES CONTROL ACT (TSCA) 46
1. Link with Office of Chemical Safety, Pesticides, and Prevention's Top Priorities 47
3. Reset Our Relationships with States 52
4. Improve Transparency 53
5. Relevant Policies, and Guidances 54
C. FEDERAL INSECTICIDE, FUNGICIDE AND RODENTICIDE ACT (FIFRA) 54
1. Link with Top Office of Pesticide Programs Priorities 54
2. Aggressively Go After Pollution Problems That Make a Difference in Communities 55
3. Reset Our Relationships with States 63
4. Improve Transparency 64
5. Relevant Policies and Guidances 64
D. SPECIFIC COMPREHENSIVE ENVIRONMENTAL RESPONSE COMPENSATION AND LIABILITY ACT (CERCLA)
ENFORCEMENT PROGRAM PERFORMANCE EXPECTATIONS 66
7. Link with Top OSWER Priorities 66
2. Aggressively Go After Pollution Problems That Make a Difference in Communities 66
3. Working With States, Tribes and Local Communities 68
4. Improve Transparency 68
SECTION VI: KEY PROGRAM PRIORITIES AND STRATEGIES TO ADDRESS ENVIRONMENTAL
PROBLEMS THROUGH CRIMINAL ENFORCEMENT 69
1. Criminal Enforcement Priorities 69
1. Linkwith Critical Program Office Priorities 69
3. Improve Transparency 70
SECTION VII: KEY PROGRAM PRIORITIES AND STRATEGIES TO ADDRESS ENVIRONMENTAL
PROBLEMS THROUGH THE NATIONAL ENVIRONMENTAL POLICY ACT 71
A. SPECIFIC FEDERAL ACTIVITIES PROGRAM PERFORMANCE EXPECTATIONS 71
SECTION VIII: NATIONAL PROGRAM REQUIREMENTS FOR ADDITIONAL OECA PROGRAMS
UNDER GOAL 5 73
A. SPECIFIC EMERGENCY PLANNING AND COMMUNITY RIGHT TO KNOW ACT (EPCRA) PROGRAM PERFORMANCE
EXPECTATIONS 73
1. Linkwith Top Office of Environmental Information Priorities 73
2. Aggressively Go After Pollution Problems That Make a Difference in Communities 73
3. Reset Our Relationships with States 75
4. Improve Transparency 75
5. Relevant Policies and Guidances. 75
B. COMPLIANCE INCENTIVES PROGRAM PERFORMANCE EXPECTATIONS 75
1. Aggressively Go After Pollution Problems That Make a Difference in Communities 75
2. Reset Our Relationships with States 76
3. Improve Transparency 76
C. FEDERAL FACILITIES ENFORCEMENT PROGRAM PERFORMANCE EXPECTATIONS 76
1. Aggressively Go After Pollution Problems That Make a Difference in Communities 77
2. Reset Our Relationships with States 79
3. Improve Transparency 79
D. STATE REVIEW FRAMEWORK (SRF) EXPECTATIONS 79
SECTION IX. FY2012 OECA WORKPLAN SUBMISSION INSTRUCTIONS 81
A. ANNUAL COMMITMENT SYSTEM 81
B. FTE RESOURCE CHARTS 81
SECTION X. LIST OF ACRONYMS 83
FY2012 OECA NPM Guidance Page 3
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EXECUTIVE SUMMARY
A. Program Office
This guidance applies to the Office of Enforcement and Compliance Assurance (OECA), all
Environmental Protection Agency (EPA) regional enforcement programs, and States and Tribes
implementing EPA-approved inspection and enforcement programs1. OECA designs, develops,
implements and oversees national enforcement programs, while the regional offices work with
States, Tribes, and others to implement these programs. The OECA National Enforcement
Program Managers Guidance (NPMG) for fiscal year (FY) 2012 describes how EPA should
work with state and tribal governments to enforce environmental laws that protect and improve
the quality of the Nation's environment and public health.
B. Introduction/ Context
EPA's national enforcement and compliance assurance program is multi-media in scope and
breadth. The national program maximizes compliance with ten distinct federal environmental
statutes using a variety of tools, including civil and criminal enforcement, compliance assistance,
incentives, and monitoring, as well as other strategies to improve compliance, such as
publication of compliance information. OECA implements a total of 28 separate program areas
dealing with prevention and control of air pollution, water pollution, hazardous waste, toxic
substances, and pesticides. The statutory and regulatory requirements of these programs apply to
a diverse universe of regulated entities. EPA works closely with the states to assure that
enforcement programs achieve the protections of the environmental laws and provide a level
playing field for responsible businesses.
The majority of the work in the FY 2012 NPMG is accomplished under Goal 5 - "Enforcing
Environmental Laws" in the FY 2011-2015 EPA Strategic Plan
(http://www.epa.gov/planandbudget/strategicplan.html. Goal 5 of the Strategic Plan addresses
how EPA will address pollution problems through vigorous and targeted civil and criminal
enforcement, promote compliance and deter violations by achieving set enforcement goals,
including those for national enforcement initiatives with special emphasis on potential
environmental justice concerns and those in Indian country.
The FY 2012 NPMG is organized to describe, for each statutory authority, the national
enforcement and program office priorities, and other key enforcement actions to achieve EPA's
enforcement goals.
C. Program Priorities
OECA's work aligns with and implements the Administrator's priorities in the following ways:
1 EPA implements programs in states and Indian country until EPA approves the state or Tribe to implement the
inspection and enforcement program.
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Taking Action on Climate Change: Enforcement supports the Agency's climate strategy
by recognizing reductions of global warming pollution in settlements of enforcement
actions. OECA will be working to support the integrity of the monitoring and reporting
system for global warming pollution by assuring compliance with the greenhouse gases
reporting rule.
Improving Air Quality: Enforcement helps improve air quality in communities by
targeting large pollution sources, especially in the utility, acid, cement and glass
industries, and taking aggressive action to bring them into compliance, which may
include installing controls that will benefit communities and improve emission
monitoring. OECA is working closely with the Office of Air and Radiation to reduce
toxic air pollution, through protective enforcement, permitting and standards, especially
in communities that are disproportionately affected by pollution now. OECA will
continue to work with States and Tribes to improve monitoring of compliance with air
pollution standards and make sure that action is taken against serious violations that
affect community air quality.
Assuring the Safety of Chemicals: As the Agency steps up its review of chemical safety
and pushes for reform, OECA will work closely with the Office of Chemical Safety and
Pollution Prevention to achieve its goals. The enforcement program will take action
when we find violations of standards for high-concern chemicals.
Cleaning Up Our Communities: Enforcement ensures that parties responsible for
contamination step up to their cleanup responsibilities. By ensuring that the polluter pays
whenever possible, OECA's efforts result in more cleanups, which protect more
communities from exposure and returns properties to productive use. OECA will also
use enforcement to spur cleanup at RCRA corrective action sites where the cleanup
progress is stalled.
Protecting America's Waters: OECA is revamping the water enforcement program to
focus on the problems that are the biggest threat to the nation's waters. At the same time,
OECA will increase oversight of the States and work to define the shared accountability
of EPA, States and Tribes for clean water, working closely with the Office of Water.
OECA will improve transparency, to enlist the public in holding sources and government
accountable.
Expanding the Conversation on Environmentalism and Working for Environmental
Justice: In all OECA's enforcement work, as described above, OECA can help protect
communities by targeting enforcement in areas where we find serious noncompliance and
where communities face multiple pollution threats. OECA works with other federal
agencies to make sure environmental justice considerations are included in their decision-
making process as they prepare environmental analyses (environmental impact
statements or environmental assessments) under the National Environmental Policy Act
(NEPA). OECA also will make available more understandable information on facility
compliance and government response, so that people have the information they need to
take action to improve their own communities.
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Building Strong State and Tribal Partnerships: EPA shares accountability with States and
Tribes for protecting the environment and public health. With the current economic
challenges, it is important that EPA and its partners work efficiently and effectively to do
the most we can with the resources we have. At the same time, OECA will strengthen
oversight of States that implement federal environmental programs, and support States
that take strong enforcement action to protect their citizens by making sure that we hold
all States to a comparable standard.
OECA's overall enforcement goals for FY 2012 are to:
Aggressively go after pollution problems that make a difference in communities. EPA will
use vigorous civil and criminal enforcement that targets the most serious water, air and
chemical hazards; and advance environmental justice by protecting vulnerable communities.
o Clean water
The Clean Water Act action plan commits EPA to revamp enforcement and
work with permitting to focus on the biggest pollution problems, such as
Getting raw sewage out of the water
Cutting pollution from animal waste
Reducing polluted storm water runoff
Assure clean drinking water for all communities, including in Indian country
Clean up great waters that matter to communities, e.g, Chesapeake Bay
o Clean air
Cut toxic air pollution in communities
Reduce air pollution from largest sources, including coal-fired power plants,
cement, acid and glass sectors
o Climate and clean energy
Assure compliance with Greenhouse Gas Reporting Rule
Encourage greenhouse gas emission reductions through settlements
Target energy sector compliance with air, water and waste rules
o Protect people from exposure to hazardous chemicals
Prevent releases of hazardous chemicals that threaten public health or the
environment
Press for prompt cleanup of hazardous sites in communities, ensuring that the
polluter pays
Reform chemical management enforcement and reduce exposure to pesticides,
focusing on specific areas aimed to help achieve clean water, clean air, and
climate and clean energy, and to protect people from exposure to hazardous
chemicals.
Reset our relationship with States to make sure we are delivering on our joint
commitment to a clean and healthy environment.
o Shared accountability
Make joint progress with States and Tribes toward clean air and water goals,
and protection from exposure to hazardous chemicals
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Work toward shared focus on protecting vulnerable communities
o Strengthened oversight
Assure strong and effective State enforcement of federal environmental laws
Press for consistent enforcement across States and Regions, ensuring fairness
and a level playing field
o Establish new model for shared accountability and strengthened oversight, starting
with water
Build focus on highest priority problems into grants, enforcement and
permitting agreements
Define clear expectations for state performance
Take federal action where minimum expectations are not met
Improve transparency
o Make meaningful facility compliance information available and accessible using 21st
century technologies
o Hold government accountable through public information on state and federal
performance
o Promote better federal environmental decisions and public engagement through
NEPA
To help implement these enforcement goals, OECA selects a limited number of National
Enforcement Initiatives based upon significant environmental risks and noncompliance patterns.
In FY 2010, EPA re-examined the existing initiatives to look for opportunities to clarify goals
and measures, more accurately identify universes of sources, and, where necessary, to change the
focus of an Initiative. In addition, EPA considered candidates for new National Enforcement
Initiatives. After consulting with EPA programs and Regions, States, Tribes, and the public,
OECA adopted the following National Enforcement Initiatives for 2011 through 2013. More
information on each is found in the media sections of this guidance:
Keeping raw sewage and contaminated stormwater runoff out of our waters
Cutting animal waste to protect surface and ground waters
Reducing widespread air pollution from the largest sources, especially the coal-fired
utility, cement, glass, and acid sectors
Cutting toxic air pollution that affects communities' health
Assuring energy extraction sector compliance with environmental laws
Reducing pollution from mineral processing operations
Strategies to implement these initiatives are developed by regional and headquarter teams and
include goals, measures, and options for innovative approaches.
D. Achieving Compliance for National and Regional Priorities
EPA and states need to consider how to best use the mix of compliance tools to address all the
regulated entities contributing to the environmental problem. The strategic use of the tools along
with the identification of partners to help implement them will allow for the efficient use of
Agency resources and effective approaches to solving large scale issues.
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Strategic use of the tools will benefit EPA and states by: 1) targeting limited inspection and
enforcement resources on the bad actors; 2) building capacity and coordination across partners;
and 3) expanding governments' presence and demonstrating governments' commitment. More
information on the use of integrated strategies is found in the Guide for Addressing
Environmental Problems: Using an Integrated Strategic Approach (March 2007)
http://www.epa.gov/compliance/resources/policies/assistance/index.html
Program Reviews
OECA monitors regional and state activities in a set of annual commitments at mid-year and at
the end of a fiscal year based upon Region and State results entered in OECA databases, the
Annual Commitment System (ACS), and data collected in the implementation of national
enforcement initiatives. In addition, OECA senior managers conduct an annual program review
of each regional office. The performance expectations and activities outlined in this guidance
are the starting point from which headquarters and the regional offices engage to discuss the
management of program activities and the distribution of resources. These discussions result in
regional commitments for a specific level of activity and an agreed-upon approach between the
regions and the national program manager for achieving performance expectations for the fiscal
year.
Regional Priorities
EPA Regions may also have priorities that are specific for a particular environmental situation
that may not affect other regions. Some problems cross regional boundaries and regions are
working together to address them. For example, in response to the President's May 12, 2009,
Executive Order 13508Chesapeake Bay Protection and Restoration, Regions 2, 3, 4, and 5 are
working with OECA to address nitrogen deposition to the Bay from large industrial air sources
of NOX. The Regions will build on work already begun under the national enforcement
initiatives to evaluate the compliance of power plants and other industrial sources in the
Chesapeake Bay air shed emitting more than 1000 tons of NOX per year. Any resulting
enforcement actions would seek to achieve significant NOX reductions through complying
actions, as appropriate. In addition, Region 3 will take steps to evaluate the potential impacts on
the Bay of ammonia (NFL?) emissions from concentrated animal feeding operations (CAFOs).
E. Cross Cutting Strategies in the FY2011-2015 Strategic Plan
As part of the FY 2011-2015 Strategic Plan, the Agency has identified five cross-cutting
fundamental strategies designed to change the way the Agency works and delivers environmental
and human health protection. OECA's NPM guidance directly supports three of the five cross-
cutting strategies by instructing the regions to undertake activities in FY2012 that contribute to
the cross-cutting strategies' goals. Specific examples in the FY2012 guidance include the
following:
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Expanding the Conversation on Environmentalism
Data regarding state assessments, priorities and performance under the Clean Water Act
(CWA) should be made public, where possible, on a regular basis in a manner easily
understood and used by the public;
Compliance data should distinguish State information from Indian country information;
Information should be made available to communities, including Native American and
Alaskan Natives, who lack access to the internet;
Criminal Enforcement program will continue to develop its use of new outreach methods
such as Facebook, Twitter and mobile applications to encourage the public's reporting of
potential violations and to provide leads through the fugitives website
http ://www. epa.gov/fugitives/.
Strengthening State, Tribal and International Partnerships
Regions will continue to implement the CWA Action Plan in FY2012 by collaborating with
states to address NPDES permitting, compliance monitoring, and enforcement activities,
including work-sharing;
A majority of program narratives in the FY2012 guidance contain specific activities
regarding state relationships;
Regions should consult, as appropriate, with potentially impacted tribal governments when
conducting inspections and addressing noncompliance at tribal and non-tribal facilities in
Indian country.
Working for Environmental Justice (EJ) and Children's Health
Regions are directed to use the Agency's environmental justice tools and methodologies to
focus enforcement and compliance efforts in communities overburdened by exposure to
environmental risks, including minority and low-income communities, as well as those with
greater concentrations of sensitive populations.
Specific OECA EJ performance expectations, which include children's health as appropriate,
are discussed in Section II of this guidance.
OECA's national enforcement initiatives address some of the more complex pollution problems;
especially those confined to a particular sector or source type, and can have positive impacts
on children's health. For example:
o Reducing widespread air pollution from large sources, especially the coal-fired utility,
cement, glass, and acid sectors can potentially lessen adverse health effects such as
asthma, respiratory diseases and premature death in communities overburdened by
exposure to environmental risks and vulnerable populations, including children.
o Preventing animal waste from contaminating surface and ground waters reduces
children's exposure to disease-causing pathogens, nutrients, or other contaminants which
have potential adverse health effects
o Addressing the human health and environmental threats from of mining and mineral
processing can lead reduced exposure to asbestos and lead poisoning in children.
In addition to the national initiatives, OECA reduces risks to children through the following:
FY2012 OECA NPM Guidance Page 9
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o Requiring Local Education Agencies (LEAs) to inspect for asbestos
o Monitoring and enforcement to promote compliance with lead based paint (LBP) rules to
advance the goal of eliminating and preventing LBP hazards, which are the primary cause
of childhood lead poisoning.
o Monitoring and enforcement to prevent the illegal importation of pesticides which have
been linked to poisoning of children
F. Significant Changes from FY2011
The Office of Enforcement and Compliance Assurance's FY 2012 guidance continues to focus
on the Administrator's and Assistant Administrator's goals, and on aligning enforcement and
compliance priorities with those of the other EPA national program managers. As in FY 2011,
the FY 2012 guidance is organized to describe the specific expectations for Regions that
implement the Assistant Administrator's priorities and, explains how the enforcement program
supports the priorities of other EPA national programs. There are some notable changes in
specific programs contained within this guidance and can be summarized as follows:
Clean Water Action Plan: The FY12 guidance contains more specific instructions for the
regions and states on how to implement the Clean Water Action Plan such as replacing
existing paper reporting with electronic reporting, creating a new compliance paradigm,
retooling key NPDES permitting and enforcement activities, and conducting comprehensive
and coordinated permitting, compliance, and enforcement programs.
Wetlands Program: The FY12 guidance sets expectations for the regions to participate in a
Section 404 Enforcement Strategy pilot program to improve coordination and
communication between EPA and the Corps of Engineers to improve management of the
wetlands protection program.
Oil Spills Prevention: In light of the events of the British Petroleum oil spill, the FY12
guidance has been expanded to provide more detailed instructions on the compliance and
enforcement activities of an effective oil spill program.
Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) Program - Each year
regions are asked to place special emphasis on key focus areas within the FIFRA program.
In FY12, an optional focus area has been included to provide flexibility to the regions on
where to focus their efforts. This flexibility allows for more opportunities to support the
Office of Chemical Safety and Pollution Prevention's program priorities.
G. Contacts
For general questions or comments on the OECA National Program Managers Guidance or our
Annual Commitments please contact:
FY2012 OECA NPM Guidance Page 10
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Lisa Raymer
Office of Enforcement and Compliance Assurance
Office of Compliance
Planning, Measures, and Oversight Division
1200 Pennsylvania Ave., NW, M2221A
Washington, DC 20460
Email: Raymer.Lisa@epa.gov
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SECTION I: OECA GUIDANCE DEVELOPMENT AND FEEDBACK PROCESS
OECA has structured the NPM Guidance to focus on the performance expectations of the
national enforcement program in terms of 1) achieving the Enforcement Goals, 2) making
progress in attaining compliance within the national enforcement initiative areas and 3)
supporting the EPA program offices in achieving their environmental and public health goals.
EPA will post the FY 2012 NPM draft Guidance to allow Regions, States, Tribes, and others to
review and comment on the draft. In the past, OECA has received comment from Regions,
States, Tribes, and other stakeholders. OECA will respond to the comments and incorporate
changes, as needed, in the final documents. The final guidance and a Response to Comments
Summary will be posted on the Internet showing the action taken in the final guidance as a result
of comments.
SECTION II: SPECIFIC ENVIRONMENTAL JUSTICE PROGRAM PERFORMANCE
EXPECTATIONS
OECA plays a dual role in setting performance expectations for environmental justice. First,
OECA oversees national and regional enforcement programs. In this role, OECA ensures that
facilities in communities overburdened by environmental problems are complying with the law.
OECA aggressively applies regulatory tools to protect vulnerable communities, enlists partners
to meet community needs, and fosters community involvement in EPA's decision-making
processes by making information available.
Second, OECA is the National Program Manager for the Environmental Justice (EJ) Program.
The EJ Program facilitates headquarter and regional efforts to achieve measurable environmental
or public health benefits/results for communities overburdened by environmental problems.
OECA and Region 5, as Lead Region for FY2011-2013, are implementing the Strategies and
Activities outlined in Advancing Environmental Justice through Enforcement and Compliance
(EJ 2014 Plan), one of the five cross-cutting areas identified for Agency-wide action in EPA's
Plan EJ 2014. OECA's goals under this Plan are to fully integrate consideration of EJ concerns2
into the planning and implementation of program strategies, case targeting strategies, and
development of remedies in enforcement actions to benefit these communities. OECA also plans
to accelerate efforts to communicate more effectively with vulnerable and overburdened
communities about enforcement actions and program activities.
2 EPA defines "environmental justice" as the fair treatment and meaningful involvement of all people regardless of
race, color, national origin, or income with respect to the development, implementation, and enforcement of
environmental laws, regulations, and policies. EJ concerns with respect to "fair treatment" arise where there are
actual or potential disproportionate impacts on minority, low-income, or indigenous populations that exist prior to or
that may be created by a proposed action. EJ concerns with respect to "meaningful involvement" arise where there is
an actual or potential lack of opportunities for minority, low-income, or indigenous populations, or tribes, to
effectively and appropriately participate in decision-making. These terms are discussed in more detail in Part I of
EPA's "Interim Guidance on Considering Environmental Justice during the Development of an Action "
(http://www.epa.gov/compliance/ej/resources/policy/ej-rulemaking.html).
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OECA has developed five strategies for Advancing Environmental Justice through Enforcement
and Compliance:
1. Advance EJ goals through selection and implementation of National Enforcement
Initiatives.
2. Advance EJ goals through targeting and development of compliance and enforcement
actions.
3. Enhance use of enforcement and compliance tools to advance EJ goals in Regions'
geographic initiatives to address overburdened communities.
4. Seek appropriate remedies in enforcement actions to benefit vulnerable and overburdened
communities and address EJ concerns.
5. Enhance communication with affected communities and the public regarding EJ concerns
and the distribution and benefits of enforcement actions, as appropriate.
For FY2012, OECA will address our EJ 2014 Plan goals through the following performance
expectations.
1. Advance EJ goals through Selection and Implementation of National Enforcement
Initiatives
OECA will continue to look for opportunities to address EJ concerns as it implements the
National Enforcement Initiatives for FY2011-13. A "Strategy Implementation Team,"
consisting of OECA headquarters and regional representatives, is responsible for developing
implementation strategies and performance measures for each of the National Enforcement
Initiatives. Each initiative's strategy will consider how EJ concerns can be addressed in
carrying out its activities, e.g. by giving priority in case selection to overburdened
communities affected by the pollution problems the Agency seeks to address in each of the
initiatives. In developing remedies in initiative's enforcement cases, the Agency will seek
judicial and administrative remedies that will reduce or eliminate pollution that may have a
disproportionate impact on minority, low-income or indigenous populations.
2. Advance EJ Goals Through Targeting and Development of Compliance and
Enforcement Actions
OECA and the Regions will place a high priority on addressing EJ concerns as the specific
targeting and case selection strategies for both National Enforcement Initiative and other
enforcement cases are developed. As discussed above, the Strategic Implementation Teams
for each Initiative have identified opportunities to protect and benefit overburdened
communities when selecting and developing specific cases to achieve the Initiative goals.
For example, when selecting specific CAFO facilities for enforcement action, priority may be
given to facilities that are impacting or threatening the drinking water supplies of poor rural
communities. OECA and the Regions will also give specific consideration and priority to
overburdened communities when selecting enforcement actions to address other important
compliance problems, regardless of whether they are part of an Initiative. For example, in
selecting enforcement actions to address violations of drinking water standards, we will give
high priority to addressing violations at water supply systems that serve poor and tribal
communities, as well as children, one of our most vulnerable populations.
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In FY2012, OECA will continue to use the Environmental Justice Strategic Enforcement
Assessment Tool (EJSEAT) or similar screening tools and other information, e.g.,
community input, to support targeting of enforcement actions and to enhance performance
reporting. In addition to OECA's efforts to develop screening tools for use in the
enforcement and compliance program, the Agency's Information Tools Development
Workgroup is undertaking a larger effort to develop guidance on identifying areas of
potential EJ concern as a separate effort under EPA's Plan EJ 2014. It will be important to
ensure that OECA's guidance to enforcement case teams is consistent with the approaches
developed by the Agency-wide EJ Screening Committee. Therefore, upon completion of the
Screening Committee's work, OECA will review its guidance to ensure that it is consistent
with the final Agency decisions based on the EJ Screening Committee's work.
Regions may be asked to support development of tools to track and report on
enforcement actions and results that impact communities with potential EJ concerns, in
ICIS, according to the instructions and pilot to be developed by the EJ Tracking and
Reporting Workgroup.
3. Enhance Use of Enforcement and Compliance Tools to Advance EJ Goals in Regions'
Geographic Initiatives to Address Overburdened Communities
Regions have developed, and continue to develop, integrated strategies to focus on particular
geographic areas in their Regions with overburdened communities that are disproportionately
affected by environmental problems. Beginning in 2008 for example, each Region identified
a "Showcase Community" to focus efforts to address EJ concerns. The Regions used
integrated strategies for this purpose that included the full range of EPA's tools, and a
number of these projects included use of enforcement and compliance assurance tools .
Under this Strategy, the Regions will ensure that they use their enforcement and compliance
assistance tools effectively to identify and address environmental problems in areas of EJ
concern that are caused or made worse by violations of federal environmental laws. For
example, EPA Regions 3, 4 and 5 are leading a geographic enforcement initiative focused on
Huntington Port, which was selected in part because screening analysis indicated a high
potential for EJ concerns. This initiative incorporates enforcement and compliance
assistance to reduce pollution and increase compliance. It also includes workshops to build
the community's capacity to help ensure the long-term protection of the environment and
public health.
Regions, together with state and other partners as appropriate, should evaluate facility
compliance in EJ communities selected for strategic focus. These evaluations should be
targeted using the best available data and methods in light of the overall objectives of
EPA's enforcement and compliance assurance work. In this way, community-focused
initiatives will complement the national enforcement initiatives and other sector-based
and program-specific enforcement activities, meeting OECA's goal of strategically using
limited enforcement resources to address the most significant issues first.
Regions should tailor compliance evaluation and enforcement actions as part of
integrated strategies to maximize EPA's ability to gain environmental benefits in
overburdened communities. For example, this could include use of multi-media
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inspections and/or process inspections to comprehensively address potential impacts from
violations at a given facility.
OECA and the Regions will consider and use compliance assistance activities to
effectively reach large numbers of small sources with environmental violations that have
significant local impacts on overburdened communities. Compliance assistance tools are
particularly appropriate, at least as an initial compliance effort, when widespread
violations are found among small businesses, which often have limited resources and less
ability than major industrial facilities to understand and comply with the requirements of
federal environmental regulations. EPA and states have often been successful in
improving small businesses' compliance with environmental regulations through focused
outreach and education efforts.
4. Seek Appropriate Remedies in Enforcement Actions to Benefit Vulnerable and
Overburdened Communities and Address EJ Concerns.
OECA and the Regions, and the Environmental Enforcement Section of the U.S. Department
of Justice (DOJ) are jointly heightening their focus in civil enforcement cases on potential
options to obtain meaningful environmental benefits to specific overburdened communities
impacted by violations of federal environmental laws. These efforts go beyond traditional
injunctive relief to stop illegal pollution, to provide for mitigation of the environmental harm
caused by illegal pollution and, where appropriate and agreed to by defendants, Supplemental
Environmental Projects (SEPs) to provide benefits to communities. For example, in a case
involving illegal discharges of pollutants from a facility that damaged a tribal fishing area,
the relief ordered (in addition to stopping the illegal discharges) included restocking the
fishing ground. EPA has also been successful in obtaining SEPs from defendants to retrofit
diesel school buses, to reduce the air pollution children are exposed to. We will continue
and accelerate these types of efforts to reduce pollution burdens that have a disproportionate
impact on minority, low-income or indigenous populations.
In addition to the benefits that can be obtained for overburdened communities through
judicial and administrative enforcement actions, there may be other, parallel opportunities in
a particular situation and community to obtain additional benefits for the community through
cooperation with other federal agencies, state or local governments, and/or the business
community. For example, the U.S. Department of Housing and Urban Development may be
able to provide housing assistance or other community benefits in a "brownfields" area
where EPA has taken enforcement action to clean up environmental contamination. State or
local governments may have projects or grant funding that can be used to improve the
community's infrastructure or environment in an area that is also the focus of EPA
compliance or enforcement action. In situations where air emissions from multiple industrial
facilities continue to adversely affect community health despite their compliance with
emission limitations, some business communities may be willing to work together to take
voluntary action to further reduce the emissions that adversely affect the community.
Examples of such voluntary actions include: a health clinic established and operated together
with local, state and community members; a household hazardous waste collection drive; a
local company voluntarily agreeing to post compliance monitoring information directly on a
public website to allow community members to check on compliance; "good neighbor
FY2012 OECA NPM Guidance Page 15
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agreements" between local companies and communities to address facility impacts not
regulated by a permit or other law. EPA will identify specific opportunities, in cases or
regional geographic initiatives, to work with other federal agencies, state and local
governments, and/or the business community to complement and leverage benefits resulting
from enforcement activities. EPA will document and share recommendations and best
practices for taking action on these opportunities.
5. Enhance Communication with Affected Communities and the Public Regarding EJ
Concerns and the Distribution and Benefits of Enforcement Actions, As Appropriate
OECA and the EPA Regions with the Department Of Justice will increase their efforts to
communicate with affected communities and the public about enforcement strategies and
actions that may affect vulnerable and overburdened communities. We recognize that
communities have a legitimate need to be informed and to understand the federal
government's enforcement activities to protect their environment, and to have their voices
heard when solutions are being considered to redress environmental problems caused by
violations of federal environmental laws that affect their community. As OECA implements
Plan EJ 2014, we commit to increase our outreach to communities and to provide more
information about environmental problems caused by failure to comply with federal
environmental laws, our efforts to address those problems, and available judicial and
administrative solutions to those problems that can address the communities' concerns and
needs.
At the same time, it is important for communities to understand the legitimate and essential
need to protect the confidentiality of enforcement activity when a case is under development
and in settlement negotiations. This is essential to assure that effective enforcement, and its
ultimate benefits for the community, will not be undermined and adversely affected by
premature disclosure of confidential enforcement information. While this consideration will
necessarily limit the amount and kind of information that EPA is able to share with the
community at various stages of enforcement activity, we are committed to sharing as much
information as possible to enable communities to be informed and to have their voices heard
in the determination of appropriate resolutions for violations of federal environmental laws
that affect communities.
While increased communication efforts are important, it is no less important to receive input
from communities on potential violations. We will continue to invite tips and complaints,
including through such means as OECA's on-line reporting badge and the EPA fugitives
webpage.
OECA and the Regions will review their enforcement dockets to identify communities
with EJ concerns that could benefit from enhanced communication and consultation
regarding enforcement activities, and provide the communities with additional
information (consistent with the confidentiality requirements needed to protect the
integrity of enforcement actions).
OECA and the Regions will also provide opportunities for communities to provide input
on EJ concerns and remedies to be sought in enforcement actions that affect their
FY2012 OECA NPM Guidance Page 16
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communities. This information will be provided through EPA's website, local
information repositories, and other appropriate means.
OECA and the Regions recognize that EPA's enforcement processes, e.g. the
enforcement processes concerning hazardous waste site cleanup that affect communities
with EJ concerns, are often complicated and can be difficult for the public to understand
and to follow. To increase communities' ability to understand our enforcement
processes, we will continue to improve the accessibility to communities of the
information provided on EPA's website, develop and make available fact sheets to better
explain EPA's enforcement process at particular sites, and update for internal EPA use a
compendium of "best practices" that will encourage and facilitate EPA employees'
efforts to make enforcement information more available to the public. EPA's
enforcement actions frequently provide significant benefits1 to vulnerable and
overburdened communities, including reduction of air or water pollution, cleanup of toxic
and hazardous waste, and additional community benefits such as diesel bus retrofits and
other benefits made available through Supplemental Environmental Projects (SEPs).
However, the community is able to appreciate these benefits only to the extent that it is
aware of them. Therefore, OECA and the Regions will continue accelerating our efforts
to communicate, through press releases, our website and other means, the benefits of our
enforcement actions for vulnerable and overburdened communities, consistent with the
memo, "Characterizing the EJ Benefits Achieved in Enforcement Actions" issued in
2011.
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SECTION III: KEY PROGRAM PRIORITIES AND STRATEGIES TO ADDRESS
ENVIRONMENTAL PROBLEMS FROM AIR POLLUTION
A. Clean Air Act (CAA)
OECA addresses air pollution problems through the following CAA programs:
Part 60 - New Source Performance Standards (NSPS)
Part 61- National Emission Standards for Hazardous Air Pollutants (NESHAP)
Part 63 -Maximum Achievable Control Technology (MACT)
o Maximum Achievable Control Technology (MACT) - major sources
o Generally Available Control Technology (GACT) - area sources
New Source Review/Prevention of Significant Deterioration (NSR/PSD)
Enforcement of State Implementation Plans and plans developed and approved under
Section lll(d)
Title V Operating Permits
Part 82-Title VI Stratospheric Ozone Protection
Section 112(r) Prevention of Accidental Releases
Title n (Emission Standards for Moving Sources)
Section 129 Solid Waste Combustion
1. Implement National Enforcement Initiatives
The relevant FY 2011 - 2013 national enforcement initiatives for CAA programs are:
Cutting Toxic Air Pollution that Affects Communities' Health: In 1990, Congress identified
189 hazardous air pollutants (HAPs) that present significant threat to human health and have
adverse ecological impacts (http://www.epa.gov/ttn/atw/188polls.html). The pollutants are
known or suspected to cause cancer and other serious health effects, such as reproductive or birth
defects. The threats posed by HAPs may be particularly significant for communities
overburdened by exposure to environmental risks, including urban minority and low-income
communities, as well as those with greater concentrations of sensitive populations. The CAA and
EPA's regulations impose strict emission control requirements (known as "Maximum
Achievable Control Technology" or "MACT") for these pollutants, which are emitted by a wide
range of industrial and commercial facilities. For FY2011-13, EPA will target and reduce
emissions of toxic air pollutants in three areas where the Agency has determined there are high
rates of noncompliance: (A) leak detection and repair; (B) waste gas flares; and (C) excess
emissions, including those associated with startup, shut down and malfunction. Particular
emphasis will be given to emissions at sources that have a significant impact on air quality and
health in communities. As part of this effort, OECA will utilize innovative monitoring and
evaluation techniques and partner with EPA's Office of Air and Radiation (OAR) and Office of
Research and Development.
Reducing Widespread Air Pollution from the Largest Sources, Especially the Coal-fired
Utility, Cement, Glass, and Acid Sectors: The NSR/PSD requirements of the CAA require
FY2012 OECA NPM Guidance Page 18
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certain large industrial facilities to install state-of-the-art air pollution controls when they build
new facilities or make "significant modifications" to existing facilities. However, many
industries have not complied with these requirements, leading to excess emissions of air
pollutants such as sulfur dioxide, nitrogen oxides and particulate matter. These pollutants can be
carried long distances by the wind and can have significant adverse effects on human health,
including asthma, respiratory diseases and premature death. These effects may be particularly
significant for communities overburdened by exposure to environmental risks and vulnerable
populations, including children. In recent years, EPA has made considerable progress in reducing
excess pollution by bringing enforcement actions against coal-fired power plants, cement
manufacturing facilities, sulfuric and nitric acid manufacturing facilities, and glass
manufacturing facilities. However, work remains to be done to bring these sectors into
compliance with the CAA and protect communities burdened with harmful air pollution.
Therefore EPA will continue this work as a National Enforcement Initiative for FY2011-2013.
As of January 2, 2011, EPA also began regulating greenhouse gases (GHGs) under its NSR
program. EPA will endeavor to ensure these pollutants are also addressed in any process
changes or modification that gives rise to NSR requirements.
Assuring Energy Extraction Sector Compliance with Environmental Laws: As the nation
expands its search for new forms and sources of energy, there is an urgent need to assure that we
develop "clean energy" sources that protect our air, water and land. Some energy extraction
activities, such as new techniques for gas extraction, pose a risk of pollution of air, surface
waters and ground waters if not properly controlled. For example, an unprecedented acceleration
of natural gas leasing and development has led to a significant rise in the level of air pollution
throughout the intermountain West. Drilling and fracking activities have led to concerns about
ground water pollution and the safety of drinking water supplies in various parts of the country.
To address these emerging problems, OECA's energy extraction initiative will focus on efforts to
assure that natural gas extraction activities are complying with federal requirements to prevent
pollution of our air, water and land. This initiative will be undertaken in particular areas of the
country where natural gas extraction activities are concentrated, and the focus and nature of our
enforcement activities will vary with the type of activity and pollution problem presented.
2. Link with Top Office of Air and Radiation Priorities
OECA addresses top OAR priorities in the following ways:
Greenhouse Gases (GHG): OECA continues to support the Agency's climate strategy by
recognizing reductions of global warming pollution in settlements of enforcement
actions. OECA and OAR will implement a National Implementation Strategy for the
Greenhouse Gas Reporting Program. The National Implementation Strategy will provide
guidance to Regions on compliance monitoring and assistance activities, in order to
establish the appropriate enforcement response to support the integrity of the GHG
monitoring and reporting system. As noted above, OECA will also ensure that sources
undertaking certain process changes or modification that result in significant GHG
emissions go through proper New Source Review permitting.
FY2012 OECA NPM Guidance Page 19
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Air Toxics in Communities: OECA will address this Agency priority through the 2011 -
2013 National Enforcement Initiative - cutting toxic air pollution that affects
communities' health. OECA also is working closely with OAR and ORD to reduce toxic
air pollution through standards, permitting, compliance monitoring and assistance
activities, and enforcement, especially in communities overburdened by environmental
problems.
3. Aggressively Go After Pollution Problems That Make a Difference in Communities
Air pollution moves with the wind and is therefore of great concern to communities both near its
source and remotely located. Air pollutants that are emitted closer to the ground, for example as
a result of equipment leaks or low stack height, can cause disproportionate exposure for
neighboring communities. In industrial areas, these communities frequently have significant low
income and minority populations. Serious health effects caused by air pollution include
difficulty in breathing, exacerbation of respiratory and cardiac conditions, and cancer.
Regions and delegated state/local agencies and Tribes should:
Implement programs in accordance with existing national compliance and enforcement
policy and guidance (e.g., the CAA Stationary Source Compliance Monitoring Strategy
(CMS); the CAA National Stack Testing Guidance, the Timely and Appropriate Enforcement
Response to High Priority Violations (HPV Policy); and the Area Source Implementation
Guidance to address significant air pollution problems that adversely affect impacted
communities by reducing such pollution from the largest sources with special attention
directed toward reducing toxic air pollution. Regions should work with delegated
agencies/tribes to ensure that they are familiar with national guidance, aware of the
flexibilities within the guidance, and implement their programs consistent with the guidance.
To identify the most important air pollution problems and the most serious violations, use
targeting tools and other information, such as the Environmental Justice Strategic
Enforcement Assessment Tool (EJSEAT), and community input.
Have a clearly defined process for identifying, targeting, evaluating, prioritizing, and
responding to CAA violations.
Work together to initiate civil and criminal enforcement actions, as appropriate, and
whenever necessary to protect communities by addressing and ultimately resolving serious
air violations in order to bring sources into compliance.
Evaluate all violations, determine an appropriate response, and take timely and appropriate
actions against facilities determined to have High Priority Violations (HPV).
Enter data on all federally-reportable violations, not just HPVs, consistent with the
'Clarification Regarding Federally-Reportable Violations for Clean Air Act Stationary
Sources" ("2010 FRV Clarification") issued on March 22, 2010.
Negotiate settlements and track compliance with consent decrees and administrative orders
and take all necessary actions to ensure compliance with the terms of federal enforcement
actions.
Utilize compliance assistance, monitoring, enforcement tools and other approaches that are
effective in achieving widespread compliance; the appropriate combination and sequencing
FY2012 OECA NPM Guidance Page 20
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of compliance assistance and enforcement tools may vary with the CAA program and the
type of regulated industry.
In addition, the Regions should:
Continue any on-going investigations and initiate new ones, as appropriate. Activities
reported as investigations should meet the definition of an investigation as provided in the
CMS and minimum data requirements. Regions must review and approve state
implementation plans (SIPs) as well as to track the compliance status of sources within
various regulatory programs under the Clean Air Act. Both initiated and completed
investigations are to be reported in AFS.
Review Title V permits consistent with national guidance and ensure the delegated
agencies/tribes are reviewing the certifications consistent with the CMS. Regions also
should ensure that Title V permits do not shield sources subject to a pending or current CAA
enforcement action or investigation, and that draft Title V permits include appropriate
placeholder language for the applicable requirement at any affected units. Regions should
ensure that consent decree requirements, including required schedules of compliance are
incorporated into underlying federally enforceable non-Title V and Title V permits.
Include evaluations of the proper use and disposal of ozone-depleting chlorofluorocarbons
(CFCs), hydrochlofluorocarbons (HCFCs), halon fire suppressants and other ozone depleting
substances (ODS) as part of routine full compliance evaluations (FCEs)/partial compliance
evaluations (PCEs) to the extent the regulations apply.
Inspect federal facilities, initiate enforcement actions to address non-compliance at federal
facilities, and seek penalties, where appropriate, consistent with the 1997 penalty policy for
CAA violations by federal agencies.
Perform CAA section 112(r) inspections at regulated facilities in the Region, including high
risk facilities. A high risk facility is one which meets one or more of the following criteria:
1) any facility which has reported worst-case scenario population that exceeds 100,000
people based on the Risk Management Program (RMP); 2) any RMP facility with a hazard
index greater than or equal to 25; and/or; 3) any facility that has had one or more significant
accidental releases within the previous five years. (Note: facilities that have only program
one process are not considered high risk). Inspections at high-risk facilities should also
include an evaluation of compliance with applicable EPCRA and CERCLA requirements.
Evaluate facilities that experience significant chemical accidents to determine compliance
with CAA sections 112(r)(l) and (7) and pursue an appropriate enforcement response for any
violations.
Conduct CAA section 112(r) inspections in accordance with the recently issued "Guidance
for Conducting Risk Management Program Inspections under Clean Air Act Section 112(r)"
which updated and superseded the "Guidance for Auditing Risk Management
Plans/Programs under Clean Air Act Section 112(r) of August 1999. This document
establishes final EPA policy on involvement of facility employees and employee
representatives in EPA and delegated agency on-site compliance inspections as provided for
in CAA section 112(r)(6)(L).
Focus on identifying RMP non-filers and initiating enforcement in accordance with the June
30, 2010 memorandum titled 'Identification of Facilities Subject to 40 CFR Part 68'.
Work to bring 100% closure to any self-disclosure received by the Region.
FY2012 OECA NPM Guidance Page 21
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Settle or litigate cases filed in years prior to FY2012.
Exercise authority in accordance with the 2008 Civil Monetary Penalty Inflation Adjustment
Rule and the Amendments to the CAA Civil Penalty Policy.
Ensure compliance with environmental statutes in Indian country unless and until a Tribe
obtains primacy.
COMMITMENT CAA04: The number of compliance evaluations to be conducted by the
regions at majors sources, 80% synthetic minors, and other sources (as appropriate). [Note:
Region should break out evaluation projections by source classification and by compliance
monitoring category (FCE, PCE, and Investigations). In the comment section, each region should
also provide the number of federal facility FCEs, PCEs and investigations. Projected
investigations under this commitment are those investigations initiated by the Regions for the air
enforcement program outside of the National Enforcement Initiatives, and identified by the air
program (e.g., MACT, NSPS).
4. Reset Our Relationships with States
The Regions should work with the state/local agencies and Tribes to identify priorities and align
resources to implement the above commitments. This includes:
Holding annual planning meetings with senior federal and state management to discuss air
quality standards, permitting, and enforcement when developing program goals and annual
monitoring and enforcement work plans. Convening routine and regular (several times per
year) meetings with senior state management to assess progress in how the State has been
performing overall in its implementation of the program. These meetings may be held in
person or through conference calls or other venues, as appropriate. Regular frequency of
these meetings is strongly suggested as a best practice for ensuring progress in meeting goals.
Where a state is not meeting performance expectations, the Regions should take enforcement
actions to address serious violations, particularly in the absence of an appropriate response by
the state. The Regions should focus oversight resources to the most pressing performance
problems in states and should work to demonstrably improve state performance through these
actions. The Regions need to take action when necessary to communicate which issues need
attention to achieve the goals of the federal environmental laws and ensure a level playing
field between States. Ensuring delegated agencies implement compliance monitoring and
enforcement programs in accordance with national guidance/policy (e.g., the CAA CMS;
HPV Policy; CAA National Stack Testing Guidance; Area Source Implementation
Guidance). The Regions should monitor the level and quality of efforts undertaken by the
delegated agencies to ensure strong enforcement of environmental laws. Enforcement
actions, whether taken by the Regions, delegated states/locals, or Tribes should be timely,
appropriate, and accurately reported.
Negotiating facility-specific CMS plans with all delegated agencies. Throughout the year,
the Regions are to be evaluating progress and working with delegated agencies to revise such
CMS plans as necessary.
Having frequent (at least monthly) discussions with delegated agencies to ensure consistent
implementation of the HPV Policy.
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Implementing the State Review Framework for the CAA Program and ensuring progress with
corrective actions identified in the SRF reports.
Consulting with Tribes on the central role that enforcement and compliance plays in EPA's
direct implementation program and oversight of approved tribal programs.
COMMITMENT CAA06: Ensure that delegated state agencies implement their compliance and
enforcement programs in accordance with the CAA CMS and have negotiated facility-specific
CMS plans in place. The Regions are to provide the number of FCEs at majors and 80%
synthetic minors to be conducted by individual state/local agencies to demonstrate program
implementation consistent with CMS. However, if a delegated agency negotiates with a Region
an alternative CMS plan, this Commitment should reflect the alternative plan. [Note: Break out
evaluation projections (e.g., FCEs; PCEs included in alternative plan) by source classification].
Prior to approving an alternative plan, Regions should consult with the Office of Compliance
(OC) and provide OC with information on how the state/local agency compliance monitoring air
resources will be redirected and the rationale for making the change.
5. Improve Transparency
The Regions should:
Work with the state/local agencies and Tribes to verify that their compliance and
enforcement data is added to the Air Facility System (AFS), the national repository for air
stationary source compliance monitoring and enforcement data.
Enter complete, accurate, and timely data consistent with the AFS Information Collection
Request (ICR) and Agency policies. Agreements with delegated agencies to provide
complete, accurate, and timely data should be incorporated in documents such as
memorandum of understanding (MOU), State Enforcement Agreements (SEAs),
Performance Partnership Agreements (PPAs)/ Performance Partnership Grants (PPGs) or
Section 105 grant agreements.
Work with EPA Headquarters to modernize AFS.
COMMITMENT CAA07: The Regions and delegated agencies should enter 100% of MDRs in
AFS consistent with Agency policies, including the 2010 FRV Clarification, and the AFS ICR.
The reporting of such complete, accurate, and timely data by delegated agencies should be
reflected in written, up-to-date agreements with the Regions. If the Region is responsible for
entering data for a delegated agency or Tribe, the Region should identify the delegated agency or
Tribe.
6. Relevant Policies and Guidances
Additional information about OECA's CAA programs can be found at:
http://www.epa.gov/compliance/monitoring/programs/caa/index.html
http://www.epa.gov/compliance/civil/caa/index.html
List of relevant CAA policies and guidance:
FY2012 OECA NPM Guidance Page 23
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The Air Facility System Business Rules Compendium
www.epa.gov/compliance/resources/policies/data/systems/air/afsbusinessrulescompendium.p
df
The Air Facility System Minimum Data Requirements
www.epa.gov/compliance/resources/publications/data/systems/air/mdrshort.pdf
CAA Stationary Source Compliance Monitoring Strategy
www.epa.gov/compliance/resources/policies/monitoring/cmspolicy.pdf
CAA National Stack Testing Guidance
www.epa.gov/compliance/resources/policies/monitoring/caa/stacktesting.pdf
Area Source Rule Implementation Guidance
http://www.epa.gov/compliance/resources/policies/monitoring/caa/areasource.pdf
The Timely and Appropriate Enforcement Response to High Priority Violations
www.epa.gov/compliance/resources/policies/civil/caa/stationary/issue-ta-rpt.pdf
The Timely and Appropriate Enforcement Response to High Priority Violations Workbook
www.epa.gov/compliance/resources/policies/civil/caa/stationary/hpvmanualrevised.pdf
CAA Stationary Source Civil Penalty Policy
www.epa.gov/compliance/resources/policies/civil/caa/stationary/penpol.pdf
CAA Section 112(r) Combined Enforcement Policy
http://epa.gov/compliance/resources/policies/civil/caa/stationary/caall2r-enfpol.pdf
Guidance for Conducting Risk Management Program Inspections under Clean Air Act
Section 112(r) www.epa.gov/oem/docs/chem/audit_gd.pdf
Civil Penalty Policies http://cfpub.epa.gov/compliance/resources/policies/civil/penalty/
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SECTION IV: KEY PROGRAM PRIORITIES AND STRATEGIES TO ADDRESS
ENVIRONMENTAL PROBLEMS FROM WATER POLLUTION
A. Clean Water Act (CWA)
OECA addresses water pollution problems resulting from noncompliance with our nation's
environmental statutes and regulations, including the following CWA programs:
National Pollutant Discharge Elimination System (NPDES) Program (including general
and individual permits from sources such as municipal and industrial wastewater
treatment facilities and their collection systems, concentrated animal feeding operations
(CAFOs), industrial storm water, and vessels).
Pretreatment Program
Biosolids/ Sludge Program
CWA Section 404 (Wetlands) Program
CWA Section 311 (Oil Pollution Act, including the Spill Prevention Control and
Countermeasures (SPCC) Program)
1. Clean Water Act Action Plan
OECA together with EPA Regions, States and the Office of Water continue to implement the
CWA Action Plan ("the Action Plan") issued in October 2009. Pursuant to the Action Decision
Document, scheduled for issuance in the 3rd quarter of FY11, EPA is making four fundamental
changes to revamp the NPDES permitting, compliance and enforcement program to better
address today's serious water quality problems:
1. Replace existing paper reporting with electronic reporting, automated compliance
evaluations and improved transparency.
2. Create a new paradigm for regulations and permits to compel compliance via public
accountability, self-monitoring, electronic reporting and other methods.
3. Address this decade's serious water pollution problems by re-tooling key NPDES
permitting and enforcement practices, and continue to vigorously enforce the Clean Water
Act.
4. Conduct comprehensive and coordinated permitting, compliance, and enforcement
programs to improve state and EPA performance in improving water quality.
These elements are consistent with the Assistant Administrator's goals for the compliance and
enforcement program, listed on pages 6 and 7 of this Guidance.
States and regions should participate in workgroups tasked with designing these changes as well
as use/implement the new tools, pilot projects, policies and regulations as appropriate. A list of
the workgroups and pilot projects along with the lead OECA contacts for these efforts will be
available in the third quarter of FY11 on the CWA Action Plan OTIS site. Regions should notify
OECA leads of their interest in working on these projects. For FY12, Regions should
participate in the following CWA Plan efforts already under development:
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Where appropriate, and in accordance with any subsequent guidance, enforcement actions
should require electronic reporting, as appropriate, for all data required by the enforcement
actions.
Where appropriate, and in accordance with any subsequent guidance, compliance assistance,
monitoring and enforcement personnel should provide relevant feedback to permitting offices
regarding permit prioritization and modifications to consider when permit is renewed.
Where the regions have direct implementation responsibilities, utilize multi-sector general
permit (MSGP) violation and benchmark data to support monitoring and enforcement. The
Water Enforcement Division is working with the Office of Water to obtain these data and
make them available to regions in a usable format. The data will also be used to inform
decisions on development of model documents such as 308 information requests,
administrative orders, and administrative penalty orders.
Regions should investigate the Clean Water Act (CWA) compliance status of surface mining
facilities within each Region, including mountaintop removal mining operations. Regions
should evaluate the compliance status of such facilities with respect to both NPDES
permitting requirements as well as 404 permitting requirements. If CWA violations are
identified, enforcement action should be taken where appropriate.
Actively participate in CWA Action Plan pilots (as developed in FY2011 for implementation
in FY2012) to address effluent violations reported on DMRs using new strategies and tools,
such as expedited administrative enforcement actions and electronic compliance assistance.
Consider pilots or innovate approaches to deal with more routine, paperwork violations.
Actively market and implement the use of NetDMR or other e-DMR tools by permittees for
the electronic transfer of Discharge Monitoring Reports (DMR) to ICIS-NPDES, supported
by use of the National Environmental Information Exchange Network (Exchange Network),
by all of their NPDES permitted facilities.
Regions should support additional CWA Action Plan commitments as further developed.
Regions should broaden the scope of targeting, monitoring and enforcement beyond
traditional NPDES majors, utilizing new targeting tools as developed. To assist in these
efforts, OECA and OW recently released a DMR Pollutant Loadings Tool (currently in Beta
version for user testing) to help the Regions determine who is discharging and where, along
with what pollutants are being discharged and how much. This tool includes minor facilities,
and can be found at www.epa-otis.gov/echo/dmr loading tool.html.
2. High Priority Performance Goal
For FY 2012, pursuant to direction from the Office of Management and Budget, each federal
department and agency must develop and report on a set of High Priority Performance Goals
(HPPGs) that will measure performance for a limited set of high priority activities. EPA has
developed a HPPG that measures EPA's actions to improve water quality through
implementation of the Clean Water Act Action Plan. For FY 2012, OECA has the following
HPPG:
Increase pollutant-reducing enforcement actions in waters that don't meet water quality
standards, from an FY2009 baseline of 32% to a target of 37% in FY2012.
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This HPPG aligns with the Clean Water Act Action Plan goal of targeting enforcement to serious
water pollution problems. The HPPG is not based on expected increases in enforcement actions,
but rather a greater emphasis on taking enforcement actions against facilities that discharge
pollutants into waters not achieving water quality standards for those standards. The
enforcement actions are concluded judicial and administrative enforcement cases that result in a
reduction in the relevant pollutants. The HPPG is limited to EPA actions only because at present
OECA does not have the necessary information to report on state enforcement actions. For
purposes of the HPPG, we define waters as not meeting water quality standards as broader than
the impaired waters list. See the November 11, 2010 "Guidance on Implementing FY2011 High
Priority Performance Goals" for more details on how to target and report for this measure.
OECA will continue to improve GIS-based targeting tools to link relevant water quality
information to facility location, discharges and compliance information as part of developing the
next generation of analytical tools under the Action Plan.
Continuing in FY 2012, OECA will be tracking the performance of Regions to target
enforcement actions on facilities discharging into waters not achieving water quality standards.
COMMITMENT CWA 10: Regions should focus their CWA enforcement work towards
meeting the national target of 37% for concluding federal judicial and administrative
enforcement actions resulting in a reduction of pollutants that pertain to facilities discharging
into waters that do not achieve water quality standards. The Regions should report their data per
the November 2010 guidance issued by OECA, and any subsequent updates issued for FY2012.
3. Implement National Enforcement Initiatives
The relevant FY 2011 - 2013 national enforcement initiatives for CWA programs are:
Keeping Raw Sewage and Contaminated Stormwater Out of Our Nation's Waters: EPA
will continue its enforcement focus on reducing discharges of raw sewage and contaminated
Stormwater into our nation's rivers, streams and lakes. Older urban areas in particular have aging
sewer systems that are not designed to handle heavy rainfall and snowfall, in addition to growing
urban populations and industrial discharges. As a result, untreated sewage too frequently
overflows from sewers into waterways, or backs up into city streets or basements of homes. Raw
sewage contains pathogens that threaten public health, leading to beach closures and public
advisories against fishing and swimming. This problem particularly affects older urban areas,
where minority and low income communities are often concentrated. In addition, Stormwater
runoff from urban streets and construction sites carries sediment, metal, oil and grease, acid,
chemicals, toxic materials and industrial waste into surface waters. Many cities use rivers as the
source of their drinking water, and contaminants in the water increase the difficulty and expense
of treating the water for drinking water use. The Clean Water Act requires municipalities to treat
sewage before it is discharged and to control contaminated Stormwater discharges, but many
municipalities are not complying with these requirements. EPA's enforcement efforts in recent
years have resulted in agreements by many cities to remedy these problems, but the problem
remains in many other cities. This National Enforcement Initiative will focus on reducing
discharges from combined sewer overflows (CSOs), sanitary sewer overflows (SSOs), and
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municipal separate storm sewer systems (MS4s) in FY2011-13, by obtaining cities'
commitments to implement timely, affordable solutions to these problems, including increased
use of green infrastructure and other innovative approaches. EPA is committed to working with
communities to incorporate green infrastructure, such as green roofs, rain gardens, and
permeable pavement, into permitting and enforcement actions to reduce storm water pollution
and sewer overflows. Regions should consider and promote the opportunity to utilize green
infrastructure controls in municipal enforcement actions. Green infrastructure approaches have
the potential to help reduce and/or eliminate CSOs and SSOs in a cost effective manner while
providing a variety of environmental and community benefits, including improved water and air
quality, increased energy efficiency, green spaces and economic development. For these
reasons, EPA is committed to the incorporation of green infrastructure projects into municipal
settlements where appropriate. Information on green infrastructure projects can be found at:
http://cfpub.epa. gov/npdes/home. cfm?program_id=298.
Preventing Animal Waste from Contaminating Surface and Ground Waters: Concentrated
Animal Feeding Operations (CAFOs) are defined as agricultural operations where animals live in
a confined environment (see 40 CFR Section 123). CAFOs can contain large numbers of
animals, feed, manure, dead animals and production operations on a small land area. The animals
generate a large amount of manure, which typically is held in lagoons or spread on nearby fields.
If not properly controlled, manure can overflow from lagoons or run off from the fields into
nearby surface waters or seep into ground water, carrying disease-causing pathogens, nutrients,
or other contaminants into the water. This contaminates both surface waters and ground waters
that may be used as drinking water sources and harms fish and other aquatic species in surface
waters.
Several studies have found high concentrations of CAFOs in areas with low income and minority
populations. This is typical in many rural areas of the country where livestock facilities are
located. Children in these areas may be particularly susceptible to potential adverse health
effects through exposure to contaminated surface waters or drinking water from contaminated
ground water sources. The Clean Water Act prohibits the discharge of these pollutants into
surface waters, and EPA's regulations require larger CAFOs to have permits (which impose
control requirements) if the waste produced by animals on the farm will run off into surface
waters. However, many CAFOs are not complying with these requirements, so EPA will
continue to strengthen its enforcement focus on these facilities, and those in priority watersheds.
For FY2011-13, OECA will focus primarily on existing large and medium CAFOs identified as
discharging without a permit. In addition, each Region will consider a variety of factors to
prioritize CAFO - related activities (i.e., compliance assistance, monitoring and enforcement).
These factors include identifying watersheds where CAFOs are negatively affecting water
quality, proximity to vulnerable communities, strengths and challenges of state CAFO programs,
as well as other considerations.
Assuring Energy Extraction Sector Compliance with Environmental Laws: As the nation
expands its search for new forms and sources of energy, there is an urgent need to assure that we
develop "clean energy" sources that protect our air, water and land. Some energy extraction
activities, such as new techniques for gas extraction, pose a risk of pollution of air, surface
waters and ground waters if not properly controlled. For example, an unprecedented acceleration
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of natural gas leasing and development has led to a significant rise in the level of air pollution
throughout the intermountain West. Drilling and fracking activities have led to concerns about
ground water pollution and the safety of drinking water supplies in various parts of the country.
To address these emerging problems, OECA's energy extraction initiative will focus on efforts to
assure that natural gas extraction activities are complying with federal requirements to prevent
pollution of our air, water and land. This initiative will be undertaken in particular areas of the
country where natural gas extraction activities are concentrated, and the focus and nature of our
enforcement activities will vary with the type of activity and pollution problem presented.
Implementation plans are being developed for the Municipal, CAFO, and Energy Extraction
Initiatives that will include final goals and measures, and guidance on implementation. Region-
specific commitments for activities to support the goals and measures will be negotiated through
the ACS process.
4. Link with Top Office of Water Priorities
OECA addresses top Office of Water priorities for the CWA in the following ways:
Restoring and Protecting Urban Waters: As part of aggressively going after pollution that
matters to communities, OECA's enforcement and compliance will be particularly focused
on protecting communities by getting raw sewage out of the water, cutting pollution from
animal waste, and reducing polluted stormwater runoff.
Strengthening Protections for Our Waters: OECA is improving protection of water through
the Clean Water Act Action Plan
http://www.epa.gov/compliance/civil/cwa/cwaenfplan.html).
Chesapeake Bay: Regions 2, 3, 4, and 5 should refer to the Chesapeake Bay Compliance and
Enforcement Strategy implementation plans (available upon request) for details about
expectations and commitments for storm water, waste water, air and CAFOs.
Implementation plans include goals and measures with targets for accomplishing activities to
support each, e.g., 3 MS4 audits per year. (Note: CAFO commitments are not yet
finalized.) The Strategy and other relevant information related to compliance and
enforcement is posted at
http://www.epa.gov/compliance/civil/initiatives/chesapeakebay.html)
5. Aggressively Go After Pollution Problems That Make a Difference in Communities
Communities across the country depend on clean water as a source of drinking water, a habitat to
support healthy ecosystems and as a resource for recreation and fishing. They expect protection
from exposure to water contaminated by raw sewage, animal waste and pollutants in urban storm
water run-off
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Direct exposure to raw sewage and associated high levels of disease-causing organisms can be a
particular problem for communities located in older urban areas where the aging municipal
wastewater infrastructure may be failing or unable to handle the demands of a growing urban
population. When pipes break, equipment fails or the system exceeds capacity, untreated
wastewater flows into waterways, homes and city streets, most significantly exposing the
community to pathogens. Urban water bodies can also be assaulted by large volumes of
uncontrolled polluted storm water from streets, parking lots, and commercial and industrial
businesses. Many of these older urban areas include minority and low income communities.
Exposure to animal waste from concentrated animal feeding operations may particularly affect
low income and minority populations in rural areas. Water bodies polluted by the waste can
cause human illness after swimming or wading and result in contaminated fish and shellfish.
This is a particular problem with respect to subsistence fishing, which is most frequent in
minority and low income populations.
OEC A, together with the Office of Water and state water control agencies will work to identify
at-risk waters and use their appropriate regulatory tools, including setting strong water quality
standards, issuing protective and enforceable NPDES permits and addressing serious violations
through effective enforcement to ensure water quality protection and restoration.
A. CWA NPDES Program
Regions in non-authorized States and Indian country, and authorized States and Tribes, should:
Target to identify serious sources of pollution and serious violations. Use the new tools
developed pursuant to the CWA Plan in FY2011 such as available ambient monitoring
data, pollutant loadings, and GIS, to target the most significant sources of pollutants on
those water bodies and watersheds including those that are not meeting water quality
standards as broadly defined in the HPPG Guidance.
OEC A has developed the Inspection Targeting Model for the Clean Water Act (currently
in Beta version for user testing) that includes "Is the facility or outfall within 15 Miles
Upstream of a Drinking Water Intake?" as part of its indexing. This model can be
accessed through OTIS (www.epa-otis.gov/otis/itm) and OECA is looking for feedback
on this model. Develop annual compliance monitoring plans that take advantage of the
flexibility available in the National Pollutant Discharge Elimination System Compliance
Monitoring Strategy for the Core Program and Wet Weather Sources (issued October 17,
2007), along with additional approaches identified in the CWA Action Plan, to target
inspections aimed at identifying and addressing serious water quality problems where
NPDES compliance and enforcement tools will be effective in addressing the pollution
problem.
Evaluate all violations to determine seriousness and determine an appropriate response.
Facilities in significant noncompliance (SNC) should be acted on, along with sources
with serious effluent limit violations, unpermitted discharges, systemic reporting
problems or violations at facilities with potential to seriously impact to water quality.
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Initiate and complete civil enforcement actions, where appropriate to address serious
violations contributing to a community's water quality problems. This includes judicial
and administrative actions. Ensure compliance with consent decrees and administrative
orders. Implement targeted "real time" (quick response) enforcement activities to address
violations impacting communities' waters, such as violations at concentrated animal
feeding operations. OECA will provide additional training and guidance on this
approach in FY11. Utilize assistance, incentives, monitoring and enforcement tools to
address serious noncompliance problems causing water quality problems in targeted
communities and watersheds.
In addition, Regions should:
Implement CWA specific geographic compliance and enforcement strategies, as
appropriate for their Region, including CWA Action Plan pilots, the Chesapeake Bay
Compliance and Enforcement Strategy, and other region-specific geographic initiatives.
Routinely review all DMRs and non-compliance reports received for compliance with
permit requirements where the Region directly implements the program. (Note that
Regions may accomplish this review through a routine screen of the PCS or ICIS-NPDES
data and reviewing the DMRs themselves as necessary.)
Where the Region has direct implementation responsibilities, they should inspect and
audit pretreatment POTWs and Industrial Users (lUs) to evaluate the effectiveness of the
regulatory authorities pretreatment program, either in conjunction with other compliance
inspections at major and minor POTWs such as compliance evaluations (CEIs) or
separately.
Where the Region has direct implementation responsibilities, they should inspect
biosolids/sludge facilities to evaluate the permittee's compliance with sludge monitoring,
record keeping and reporting, treatment operations, and sampling and laboratory quality
assurance, either in conjunction with other compliance inspections at major and minor
POTWs such as compliance evaluations (CEIs) or separately.
Use all available data to benchmark and monitor state performance using data from
federal and state data systems, permitting and enforcement performance reviews, and
other audit or evaluation reports. These include State Review Framework reviews, Office
of Water Permit Quality Reviews, regular EPA/State meetings to review performance,
state data not entered into national databases and GAO and/or IG reviews of state
performance. In FY2011, EPA developed an integrated and streamlined NPDES
enforcement and permitting oversight review process, issued guidance and provided
training to EPA Regions. In FY12, EPA Regions will pilot integrated NPDES
enforcement and permitting oversight reviews.
Where States have exhibited a widespread and long-standing problem with significant
aspects of their permitting or enforcement programs, Regions should object to permits or
take direct enforcement actions in those states in accordance with EPA's June 22, 2010
Memorandum titled, "Interim Guidance to Strengthen Performance in the NPDES
Program" signed by Cynthia Giles, Assistant Administrator for OECA and Peter Silva,
Assistant Administrator for Water. Regions should focus oversight resources on the
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most pressing performance problems in States which had been identified through
permitting and enforcement reviews. Regions and States must work together to
demonstrably improve state performance. Guidance will be made available under the
Clean Water Act Action Plan to further clarify expectations.
Coordinate, as appropriate, with the Coast Guard and other federal agencies which have
significant roles in addressing spills, and follow all related Memoranda of Agreement
including the MOU for the Vessels General Permit.
Continue implementing the Federal Facility Integrated Strategy on Stormwater.
Encourage States that are currently using the NPDES Permit Compliance System (PCS)
to prepare to migrate to the modernized data system, ICIS-NPDES. The batch data flow
capability from States to ICIS-NPDES through EPA's National Environmental
Information Exchange Network is currently under development and is scheduled to be
implemented in three distinct releases. The first release, completed February 2011, will
provide functionality for the transmittal of Permit and Facility information. The second
release, scheduled for January 2012, will provide functionality for the transmittal of
Inspection information. The final release, scheduled for March of 2013, will provide
functionality for the transmittal of remaining NPDES data families to include
enforcement actions, single event violations, and program reports. Regions should
support their States as they move to ICIS-NPDES.
Regions should seek injunctive relief to correct violations and protect watersheds,
including implementing green infrastructure and innovative technologies, where
appropriate.
COMMITMENT CWA07: By December 31, 2011, provide a specific NPDES Compliance
Monitoring Strategy (CMS) plan for each State in the Region. The plan should provide universe
information for the CMS categories; sub-categories covered by the CMS and combined EPA and
State expected accomplishments for each category and subcategory. The plan should identify
trade-offs made among the categories utilizing the flexibility designed into the CMS policy to
target the most significant sources with potential to impact water quality. At end of year provide
for each State a numerical report on EPA and state inspection plan outputs, by category and
subcategory. To increase the transparency of NPDES inspection data, OECA will work with
Regions and State associations to develop formats for releasing inspection data on CMS
implementation performance on a state-by-state basis.
B. CWA Section 404 - Discharge of Dredge and Fill material
Regions should:
Coordinate, as appropriate, with other federal agencies (e.g., U.S. Army Corps of
Engineers, Natural Resources Conservation Service (NRCS), Fish and Wildlife Service,
etc.) which have significant roles in wetlands protection through the use of memoranda of
understanding and memoranda of agreement or other appropriate mechanisms.
Meet with Corps Districts on an annual basis to establish regional priorities and
communicate priorities to OECA;
Review field level agreements with Corps Districts, and revise to make them consistent
with Section 404 Enforcement Strategy, as appropriate;
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Regions should utilize the Office of Water's DARTER (Data on Aquatic Resources
Tracking for Effective Regulation) system as well ICIS (Integrated Compliance
Information System) in their targeting efforts to identify potential repeat and flagrant
violators (ICIS continues to be the data base of record for tracking EPA information on
404 enforcement actions);
Develop methods to effectively leverage other program resources to more systematically
identify potential serious Section 404 violations and take appropriate enforcement
response to address these violations. Share effective techniques with OECA for use in
developing the national wetlands enforcement strategy;
Utilize existing Regional cross training opportunities as well as opportunities identified
by HQ to cross-train inspectors and to train other federal and state agencies and
stakeholders to identify CWA 404 violations;
The Section 404 Enforcement Strategy will be piloted during 2011 - 2012, and the
Regions are expected to work with OECA in implementing the strategy.
C. CWA Section 311-Oil Pollution Act
The activities described below are intended to be conducted by enforcement staff or
contractors. OECA has contract resources available to support such work
Regions should:
Participate in multi-regional judicial enforcement cases to address spills from inter-state
pipelines and others, such as production facilities, on a company-wide basis. Cases will
include company-wide injunctive relief requirements to prevent future spill violations at
all facilities of the owner or operator.
Participate in multi-regional judicial enforcement cases to address federal response
planning (FRP) violations at facilities owned or operated by the same company. Cases
will include company-wide injunctive relief requirements to improve facility response
planning and implementation at all facilities of the owner or operator.
Investigate and develop informal, administrative and judicial enforcement actions to
address noncompliance with EPA product schedule requirements for use of dispersants
and other substances. Investigate, target and develop informal, administrative and
judicial enforcement actions to address spill prevention, and facility response planning
violations at facilities subject to EPA regulations, including offshore platforms within
EPA jurisdiction. Also investigate, target, and develop informal, administrative and
judicial enforcement actions to address discharge violations (spills) where ever the
violation occurs, whether or not the spill occurred at a facility subject to EPA's spill
prevention or facility response planning regulations.
Whenever needed in the context of an enforcement action or enforcement targeting effort,
conduct inspections and enforcement investigations as needed to confirm violations or
develop enforcement cases. These activities are intended to be conducted by
enforcement staff or contractors, when needed for enforcement targeting or case
development.
Conduct enforcement investigations to identify noncompliance, target appropriately for
enforcement response, and build cases for enforcement actions. Enforcement
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investigations could include use of CWA Section 308 and/or 311(m) information
requests, independent audits, interviews, review of inspection reports, coordination with
state and other federal agencies, use of public tips and complaints, review of public
databases, or other investigative means. Whenever spill or regulatory enforcement is
pursued at facilities subject to EPA regulations, the case development staff should
evaluate whether the facility is in compliance with allspill prevention and facility
response planning requirements and should include claims in the enforcement case to
address all noncompliance in these areas.
As part of enforcement targeting work, review spill notification reports to the National
Response Center, pipeline spill reports to the Pipeline and Hazardous Materials Safety
Administration, spills reported to states and other available sources to identify spill
violations. Issue CWA 308 information requests to confirm violations and identify
causes of the spills. Take appropriate enforcement action to address spills of oil and
hazardous substances that have occurred, to include penalties and injunctive relief to
prevent future violations from similar causes across all facilities of the same owner or
operator.
Participate in OECA-led coordination and strategy meetings, as appropriate.
6. Reset Our Relationships with States
Every Region and State, working together, should conduct a CWA annual planning process that
brings the different components of the regional and state NPDES program (water quality
standards and assessment, permitting and enforcement) all to the table together, identifies and
discusses national, regional, and state priorities versus available resources at both the state and
federal levels, and results in collaborative annual work plans that use all available mechanisms to
get work done, such as federal and state work-sharing, innovative approaches to monitoring
facilities or addressing violations, etc.
Regions should:
Hold annual planning meetings with each State to develop collaborative annual work
plans. Submit summary report to headquarters by October 31, 2011.
Convene routine and regular meetings between the Region and State to discuss progress
towards meeting annual permitting and enforcement commitments, and how the State has
been performing overall in the NPDES program.
Where States are not meeting performance expectations, Regions should take
enforcement actions to address serious violations. Regions should focus oversight
resources to the most pressing performance problems in States and should work to
demonstrably improve state performance through these actions. Regions need to take
action when necessary to communicate what things need attention to achieve goals of the
federal environmental laws and ensure a level playing field between States.
Conduct a sufficient number of oversight NPDES inspections to ensure the integrity and
quality of each State or Tribe with primacy compliance monitoring programs. The
Regions have flexibility to determine the appropriate number of oversight inspections
needed to ensure proper state inspection conduct and documentation. Oversight
inspections are not "joint" inspections. Oversight inspections can be conducted by
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accompanying state inspectors during inspections, or conducting a separate inspection at
the same facility at a later date to verify the same findings.
Implement the State Review Framework (SRF) for the NPDES program in conjunction
with permit quality reviews and assure implementation associated with corrective actions
identified in the SRF reports.
Consider the following information when conducting state program oversight:
o number of SNCs identified (and percent of universe), especially those related to
effluent exceedance or illegal discharges by state and by region
o number (and percent) addressed in a timely and appropriate manner
o results of SRF and permit quality reviews and progress in correcting identified
issues.
Consult with Tribes on the central role that enforcement and compliance plays in EPA's
direct implementation program and oversight of approved tribal programs.
COMMITMENT CWA09: Regions should submit summaries of the collaborative EPA/State
annual work planning process addressing NPDES permitting, compliance monitoring, and
enforcement activities, including work-sharing, to the Office of Compliance and the Office of
Wastewater Management by October 31, 2011 for FY 2012 activities.
7. Improve Transparency
Data regarding state assessments, priorities and performance under the CWA should be
made public by the Regions and Headquarters, where possible, on a regular basis in a
manner easily understood and used by the public.
If data systems are not able to support reporting at end-of-year FY 2011, the Regions
should manually report using instructions specified in the multi-program fiscal year
reporting guidance memorandum.
Regions should work with the States and Tribes to verify that their compliance and
enforcement data is input into national databases.
Compliance monitoring activities conducted pursuant to the goals in CMS and the state-
specific plans should be reported into the appropriate national information system, either
PCS or ICIS-NPDES, in accordance with documents which establish data requirements
and reporting timeframes for those systems. States must ensure that all required
compliance and enforcement data is input or transmitted to the national databases. EPA
encourages States to expand their use of the national databases to include compliance and
enforcement data that pertains to the entire NPDES universe
Regions should review reporting practices to ensure that oil and hazardous substance
spills are timely and accurately reported to the National Response Center (NRC)
Regions should make information available to communities, including Native American
and Alaskan Natives, who lack access to the internet.
8. Relevant Policies and Guidances
Additional information about OECA's Clean Water Act programs can be found at:
http://www.epa.gov/compliance/monitoring/programs/cwa/index.html
http://www.epa.gov/compliance/civil/cwa/index.html
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B. Safe Drinking Water Act (SDWA)
OECA addresses drinking water pollution problems through the following SDWA programs:
Public Water System Supervision (PWSS) Program
Underground Injection Control (UIC) Program
EPA's focus on regulated drinking water systems, including those in Indian country, protects the
public from the potential acute and chronic health effects of drinking water that fails to comply
with the SDWA. The Enforcement Targeting Tool (ETT) identifies those public water systems
(PWSs) that have the most serious, most numerous, and longest-lasting unresolved drinking
water violations. The Enforcement Response Policy (ERP) establishes EPA's expectations of
how primacy agencies are to address drinking water violations and return violating PWSs to
compliance.
The ETT assigns to each drinking water violation a numerical point value weighted for its
severity, and applies a formula that generates a total score for each PWS with unresolved
violations. Because violations of health-based standards and major violations of monitoring and
reporting requirements for acute contaminants present the most serious risks to the public's
health, violations of these types are assigned the highest point values. Major monitoring and
reporting violations related to chronic contaminants, minor monitoring and reporting violations,
and public notification violations are assigned lower point values. The higher a PWS's total ETT
score, the more serious is its overall noncompliance.
The ERP provides that all drinking water violations at PWSs are to be resolved and that PWSs
are returned to compliance. Additionally, the ERP directs that if a PWS reaches an ETT score
of 11 or higher before its violations are resolved, that PWS will be considered a priority system
that must either return to compliance or receive formal enforcement action within six months of
having reached a score of 11. It is OECA's expectation that primacy agencies will
simultaneously be working to reduce their backlog of systems that have already been at a score
of 11 or higher for more than 6 months. As a longer term goal, primacy agencies are encouraged
to address violations at noncomplying PWSs before they become priority systems. A quick
response to SDWA violations decreases the risks to public health and allows primacy agencies
more flexibility as they work with PWSs to achieve sustained compliance. By focusing
resources on PWSs in this way, the ERP helps ensure those PWSs return to compliance in a
timely manner.
1. Link with Top Office of Water Priorities
OECA addresses top Office of Water priorities for the SDWA in the following ways:
Safeguarding Public Health: As part of aggressively going after pollution that matters to
communities, OECA will use all enforcement and compliance tools to assure public
water systems deliver safe drinking water, with continued focus on drinking water in
schools and in Indian country.
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2. Aggressively Go After Pollution Problems That Make a Difference in Communities
The ETT and ERP apply equally to EPA direct implementation, including in Indian country, and
implementation by states, territories, and tribes with primacy. EPA's goal is to ensure that the
drinking water delivered in Indian country is as safe as the drinking water delivered to the rest of
the American public.
The ETT's scoring formula focuses enforcement resources on those systems with health-based
violations, those with major monitoring and reporting violations, and those that show a history of
violations across multiple rules. Its system-based methodology is intended to ensure national
consistency and the integrity of the Public Water System Supervision national enforcement
program while providing increased protection for the public.
Regions, states, territories, and tribes with primacy will work to resolve all SDWA violations.
Because ETT scores identify the PWSs with serious noncompliance problems, primacy agencies
can establish priorities allowing them to address systems with the worst violations first. The
timely and appropriate response guidelines in the ERP ensure timely action is taken to return
serious violators to compliance.
In accordance with the ERP, all PWSs that reach a score of 11 or higher (priority systems) are to
be addressed with a formal enforcement action or returned to compliance within six months of
the quarterly ETT report on which the system first is reported as having a score of 11 or higher.
OECA headquarters will track primacy agency performance in meeting the timely and
appropriate provisions of the ERP.
COMMITMENT SDWA02:
During FY 2012, the primacy agency must address with a formal enforcement action or
return to compliance the number of priority systems equal to the number of its PWSs that
have a score of 11 or higher on the July 2011 ETT report3.
State, territory and tribal breakouts should be indicated in the comment field of the
Annual Commitment System.
3. Reset Our Relationships with States
Regions are responsible for working with states, territories, and tribes with primacy in an
oversight capacity to ensure that the ETT and ERP are implemented as intended. While OECA
and the Regions will discuss progress returning systems to compliance, identify those priority
systems for which return to compliance is impracticable, and oversee performance overall in
implementation of the program, the Regions will hold more in depth discussions with their states,
3 A primacy agency's success at addressing violations will be tracked by means of the quarterly ETT reports.
Numerical targets may be adjusted at mid-year. While it remains the ERP's goal that all of a priority system's
violations will be returned to compliance, a primacy agency has met its commitment under the 2012 SDWA ACS
with respect to a priority system if the score for that system has been brought below, and remains below, eleven.
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territories, and tribes that include, but are not limited, to progress in returning systems to
compliance, monitoring compliance progress on orders, systems addressed, and overall
performance in implementing the program. These meetings may be held in person or through
conference calls or other venues, as appropriate. EPA strongly suggests a minimum of quarterly
communication as a best practice for ensuring progress in meeting goals.
Where states are not meeting performance expectations established by this commitment, regions
should take action to ensure the highest priority systems are addressed. Regions should focus
oversight resources on the most pressing performance problems in states/territories and should
work to improve performance through these actions.
OECA will perform this oversight function with respect to direct implementation programs.
OECA will engage with regions on a regular basis to ensure that regions are directly
implementing the program in Indian country, Wyoming, and the District of Columbia effectively
and applying the ETT and ERP as intended. EPA's direct implementation programs will consult,
as appropriate, with potentially impacted tribal governments when conducting inspections and
addressing noncompliance at tribal and non-tribal PWSs in Indian country.
4. Improve Transparency
OECA headquarters will report on progress in returning systems to compliance in its annual
national compliance report posted on the EPA website at
http://cfpub.epa.gov/compliance/resources/reports/accomplishment/sdwa/
Compliance and enforcement data for all drinking water systems will be made available to the
public through the Enforcement and Compliance History Online website.
5. Relevant Policies and Guidances
Additional information about OECA's SDWA and tribal programs can be found at:
http://www.epa.gov/compliance/monitoring/programs/sdwa/index.html
http://www.epa.gov/compliance/civil/sdwa/index.html
http://www.epa.gov/compliance/resources/policies/civil/sdwa/drinking_water_erp_2009.
p_df
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SECTION V: KEY PROGRAM PRIORITIES AND STRATEGIES TO ADDRESS
ENVIRONMENTAL PROBLEMS FROM WASTE, TOXICS, AND PESTICIDES
POLLUTION
A. Resource Conservation and Recovery Act (RCRA)
OECA's RCRA program addresses the management of solid and hazardous waste and
underground storage tanks (UST). For more information on the management of hazardous waste
under RCRA Subtitle C, readers are urged to review the RCRA Compliance Monitoring Strategy
(CMS) which provides detailed information about goals and measures, policies which allow
flexibility from OECA's expectations, program oversight, and other aspects of the RCRA
compliance monitoring program.
1. Statutory and Regulatory Requirements
RCRA dictates minimum inspection frequencies for treatment, storage, and disposal facilities
(TSDF) - annually for TSDFs operated by state/local governments, and biennially for non-
governmental TSDFs. RCRA01 and RCRAOl.s apply to TSDFs owned or operated by non-
governmental entities, and to TSDFs owned but not operated by state/local/tribal governments.
RCRA03 applies to TSDFs operated by state/local/tribal governments. The inspections
performed under these RCRA commitments should be Compliance Evaluation Inspections
(CEIs).
COMMITMENT RCRA01: Project by State, and Indian country where applicable, the number
of operating non-governmental TSDFs, to be inspected by the Region during the year4. Regions
must commit to inspect at least two (2) TSDFs in each State or Indian country unless OECA
approves a deviation from this requirement. For example, deviations are given for states with
small universes where it might not make sense for a Region to inspect two TSDFs per year.
Financial responsibility is an important component of the RCRA core program and should be
included as part of the inspection of each TSDF (although the financial responsibility reviews do
not have to occur at the same time nor be conducted by the same people who conduct the field
inspections).
COMMITMENT RCRAOl.s: Project by State the number of operating TSDFs to be inspected
by the State during the year.
The RCRA CMS establishes minimum annual inspection expectations for TSDFs: The
inspections for RCRA01 and RCRAOl.s should be CEIs. Only one inspection per facility
counts towards this coverage measure.
COMMITMENT RCRA03: Inspect each operating TSDF operated by states, local, or Tribal
governments.
4 Currently there is only one TSD in Indian country.
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COMMITMENT RCRA04: Project by State and Indian country the number of financial
assurance mechanisms to be reviewed by the Region during the year. Regions must commit to
review financial test and/or corporate guarantee submissions for compliance with the closure and
post-closure regulations at a number of facilities at least equal to the Region's commitment under
RCRA01. As an alternative, Regions may choose to conduct formal financial record reviews for
facilities that did not have a financial assurance review during the FY 2005-FY 2010 as part of
the national enforcement initiative. The financial test/corporate guarantee compliance
evaluations or financial record reviews may occur at the same facilities being inspected under
RCRA01 or at different TSDFs.
The financial test/corporate guarantee compliance evaluations should take place within 90 days
after the facility's annual submission is received.
Regions should ensure continued review of financial test/corporate guarantee
submissions since they present the greatest risk and are the most commonly used
instruments.
Regions are expected to focus on reviewing the universe of TSDFs not formally
evaluated during the national priority, and on conducting in-depth reviews of financial
test/corporate guarantee submissions.
Regions are to coordinate with States to conduct these financial assurance reviews.
2. Implement National Enforcement Initiatives
The relevant FY 2011 - 2013 national enforcement initiative for RCRA programs is:
Reducing Pollution from Mineral Processing Operations: Mining and mineral processing
facilities generate more toxic and hazardous waste than any other industrial sector, based on
EPA's Toxic Release Inventory. Many of these facilities have impacted surrounding
communities and continue to pose high risk to human health and the environment. For example,
95 mining and mineral processing sites are on the Superfund National Priorities List and more
sites are being added every year, including operating facilities. EPA has spent over $2.4 billion
to address the human health and environmental threats to communities, such as exposure to
asbestos and lead poisoning in children, as a result of mining and mineral processing. In some
cases, EPA had to relocate families because of these threats, especially those to children in low
income communities. EPA has inspected 65 mining and mineral processing sites that pose
significant risk to communities and found many to be in serious non-compliance with hazardous
waste and other environmental laws. Contamination of groundwater and potable water has
occurred at many sites, sometimes requiring alternative drinking water supplies or removal of
lead-contaminated soil from residential yards. In other cases, toxic spills into waterways from
mining and mineral processing caused massive fish kills and impacted the livelihood of low
income communities. Some workers at mining and mineral processing facilities have been
exposed to spills and mismanagement of toxic and hazardous waste. EPA will continue its
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enforcement initiative to bring these facilities into compliance with the law and protect the
environment and nearby communities.
OECA has not finalized the goals and annual commitments for its national enforcement
initiatives, but it is expected there will be approximately 13 mineral processing inspections
required for 2012 nationally.
3. Link with Top OSWER Priorities
OECA addresses top OSWER priorities for RCRA in the following ways:
Recycling, Waste Minimization and Energy Recovery: OECA maintains an overall
enforcement presence in RCRA that supports OSWER in their work.
Emergency Preparedness, Implementing the EPAct Response and Homeland Security:
OECA maintains an overall enforcement presence in RCRA that supports OSWER in
their work.
Preventing Underground Storage Tank Releases: The RCRA Subtitle I enforcement
program is focused on ensuring facilities comply with the UST regulations. These
regulations require facilities to monitor UST systems to prevent leaks. OECA's NPM
guidance fully supports OSWER's goal of preventing underground storage tank releases
through the activities identified in section 4(b).
Cleaning up Underground Storage Tank Releases: Regions should monitor for
compliance with UST regulations. When leaks are found, Regions should assure leaks
are addressed as described in the UST Section 4(b) program.
4. Aggressively Go After Pollution Problems That Make a Difference in Communities
a. RCRA Program
Regions and States should inspect pollution problems that matter to communities, and develop
enforcement cases that produce significant environmental benefits. Regions, in their oversight
and direct implementation roles, and authorized States are expected to follow the guidance in the
RCRA CMS. To enable States to address environmental problems of concern to communities,
States may utilize flexibility in the RCRA CMS to deviate from their large quantity generator
(LQG) requirements. RCRA facilities may cause air, surface and groundwater pollution.
Because these facilities are frequently associated with industrial operations, surrounding
communities are often low income and minority.
Issues of emerging environmental concern to EPA and communities are listed here. These focus
areas should be considered a high priority for Regions and States when developing strategies for
targeting compliance assurance work. These should also specifically be discussed between
States and Regions when developing plans for respective activities in the Region. The areas of
concern are:
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Surface Impoundments: EPA, with support from States, continues to focus on problems
associated with illegal disposal of hazardous waste in unlined surface impoundments.
There are thousands of industrial surface impoundments across the country, many of
which adversely impact communities through air, surface water, and/or groundwater
contamination, particularly in the chemical manufacturing and petroleum refining sectors.
Centralized Waste Treatment Facilities: These facilities conduct treatment of industrial
solid waste from third-parties. Through recent inspections, EPA has identified several
such facilities that were grossly mismanaging hazardous wastes, and treating and
discharging these wastes without permits.
Hazardous Waste Recycling Facilities: EPA supports the environmentally beneficial
recycling of hazardous wastes and secondary materials. However, sham recycling and
recycling not done in compliance with RCRA requirements can result in significant
adverse impacts to human health and the environment. This area of concern will include
a focus on zinc fertilizer manufacturing that uses hazardous waste in the production
process.
Coke Manufacturing: There are approximately 20 coke manufacturing facilities in the
United States. EPA has recently inspected and identified multi-media compliance
problems at some of these facilities, including the illegal land disposal of hazardous
waste. This sector produces several listed and characteristic hazardous waste streams that
are excluded from RCRA if recycled without being land disposed. EPA intends to
conduct focused inspections within this sector to ensure compliance.
Waste Analysis Plans at Commercial TSDFs: EPA has conducted sampling at TSDFs to
determine if the facilities' waste analysis plans and treatment of the waste were adequate.
Based on the results of the sampling, concerns have been identified with the treatment
and stabilization techniques and the sampling and analysis of hazardous waste treated to
meet the Land Disposal Restriction (LDR) treatment standards for land disposal.
RCRA Corrective Action: To help achieve the RCRA Corrective Action 2020 Goals,
EPA and authorized States should focus enforcement resources on facilities that have not
made meaningful progress in achieving remedial objectives, and on financially marginal
or bankrupt facilities. Regions should use the prioritization scheme set forth in the
National Enforcement Strategy for Corrective Action when assessing EPA-lead facilities
and prioritizing facilities for corrective action enforcement.
The Regions should:
Provide compliance assistance, conduct compliance monitoring, and pursue enforcement to
ensure that pollution problems that matter to communities are aggressively addressed.
Regions and states are encouraged to support the OC's RCRA inspector training
development effort.
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Ensure that state and tribal inspectors who inspect on behalf of EPA are trained and
credentialed per Guidance for Issuing Federal EPA Inspector Credentials to Authorize
Employees of State/Tribal Governments to Conduct Inspections on Behalf of EPA (2004).
COMMITMENT RCRA02: Project by State and Indian country, the number of LQGs,
including those at federal facilities, to be inspected by the Region during the year. Each Region
must commit to inspect at least six (6) LQGs in each State, and 20% of the Region's LQGs
universe in Indian country, unless OECA approves a deviation from this requirement. For
example, deviations are given for states with small universes where it doesn't make sense for a
Region to inspect 6 LQGs per year or 20% of the Region's LQG universe in Indian country. In
the Comment Section, provide the number of federal facility LQG inspections.
COMMITMENT RCRA02.s: Project by State the number of LQGs to be inspected by the
State during the year. At least 20 percent of the LQG universe should be covered by combined
federal and State inspections unless an alternative plan is approved under the RCRA CMS.
The RCRA corrective action financial responsibility measure includes the review of financial test
submissions received by the States within each Region. For those States that are not authorized
for corrective action, the Regions should be reviewing the financial test submissions as part of
EPA's role of implementing and enforcing the corrective action program in unauthorized States.
Regions conducting financial test/corporate guarantee reviews for the RCRA Subtitle C
closure/post-closure regulatory program may also review any corresponding corrective action
submissions as part of the completion of this program measure.
COMMITMENT OSRE04: For 100% of the financial test submissions received each fiscal
year for corrective action with cost estimates over $5 million, determine whether the submission
is in compliance. Where the submission is noncompliant, take appropriate enforcement action to
address noncompliance (e.g., notice of violation). If possible, return facility to compliance by
end of fiscal year.
b. RCRA Underground Storage Tank (UST) Subtitle I Program
A major focus of the RCRA UST program is to maintain an enforcement presence concerning
leak prevention, leak detection, corrective action, closure, and financial responsibility violations.
EPA is committed to ensuring facilities operate underground storage tanks (USTs) in a manner
that is protective of human health and the environment. Agency compliance assurance and
enforcement activities will focus on those facilities posing the greatest risk to human health and
the environment. Regional enforcement efforts should ensure that owner/operators of RCRA
Subtitle I regulated facilities properly prevent and detect releases and take appropriate corrective
action when releases occur.
EPA directly implements the UST program in Indian country in coordination with Tribes and
tribal consortia because RCRA precludes EPA from authorizing tribal UST programs.
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Authorized States have primary responsibility for determining facility compliance, ensuring
adequate inspection coverage of the regulated universe, taking appropriate actions in response to
non-compliance, and playing a vital role in alerting EPA to regulatory implementation problems.
Generally, federal compliance assurance and enforcement will complement and provide
oversight of state activities. Although States with approved programs have primary
responsibility for monitoring compliance and initiating enforcement actions against violators of
the UST requirements, Regions should inspect and initiate federal enforcement cases to
supplement and support state efforts. Federal involvement or support can provide significant
benefits by addressing noncompliance from a national or corporate-wide perspective, facilitating
compliance efforts involving multiple States and/or Regions, and enhancing public awareness in
a broader, more national forum.
Regions should:
Target UST inspections that will produce the greatest environmental and human health
benefits (e.g., leak prevention, leak detection, corrective action, and financial
responsibility). Factors to consider in identifying facilities for inspection under the UST
program include:
Owners and operators of USTs located in Indian country;
Owners and operators with UST facilities in multiple states;
Mid-level distributors with multiple UST facilities;
Problem noncompliers; (i.e.; repeat violators; owners/operators who fail to cooperate
in an effort to return to compliance);
Owners and operators of facilities with USTs that endanger sensitive ecosystems or
sources of drinking water; and
Corporate, government-owned, and federal central fueling facilities.
Regions are expected to take enforcement actions and assess penalties, as appropriate, to
ensure optimum deterrence effect and compliance impact. Regions will consult with the
States on use of the delivery prohibition, when appropriate, to address significant
noncompliance. It is recognized that this tool may not be an option for States and Tribes
that do not have delivery prohibition programs or are not State Authorized Programs.
Focus on developing large complex cases involving noncompliance on a corporate-wide
basis or noncompliance in multi-state operations.
Focus on comprehensively evaluating corporate compliance and fully developing cases
involving noncompliance on a corporate-wide basis or noncompliance that occurs at
facilities located in multiple states.
5. Reset Our Relationships with States
RCRA compliance monitoring is a collaborative effort between OECA, Regions, and authorized
States. Each of these entities performs complementary but distinct roles. OECA provides
national program leadership, and oversight of Regional and state programs, aimed at increasing
program effectiveness and national consistency.
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Regions and authorized states should:
Ensure the most serious environmental problems caused by noncompliance are addressed.
Regions should accomplish this primarily through annual planning with States, State
program oversight, strategic and targeted federal inspections and enforcement in States,
and through direct implementation in Indian country. Regions provide capacity-building
support to States on complex or multi-state issues; and consult with States to identify
compliance problems that may warrant areas of national focus. Regions should meet and
consult regularly (for example, quarterly) with each authorized State to maintain
communication on progress towards meeting annual permitting and enforcement
commitments, enhancing program performance and ensuring fairness and a level playing
field.
Take action to ensure serious violations are addressed where states are not meeting
performance expectations. Regions should focus oversight resources on the most pressing
performance problems in States and should work to demonstrably improve state
performance through these actions. Regions need to take action where States are not
addressing serious violations to communicate necessary improvements to state programs in
order to achieve goals of the federal environmental laws and ensure a level playing field
between States.
States are encouraged to report to the regions and OECA, any patterns of noncompliance
they may identify through their inspections or other activities.
Consistent with EPA's Policy on Consultation and Coordination with Indian Tribes;
OECA 's Guidance on the Enforcement Principles Outlined in the 1984 Indian Policy
(January 17, 2007), the Regions should consult, as appropriate, with potentially impacted
tribal governments when conducting inspections and addressing noncompliance at tribal
and non-tribal facilities in Indian country.
RCRA Corrective Action
RCRA corrective action is implemented by EPA and 43 authorized States and territories. The
National Enforcement Strategy for Corrective Action (NESCA) encourages EPA and States to
continue to work in partnership to achieve the 2020 Corrective Action goals and emphasizes the
need for close communication and coordination between EPA and States to meet this goal.
Regions should be working closely with their State partners to implement NESCA. NESCA
provides guidance to Regions and States for targeting enforcement efforts and to address special
considerations that arise in the enforcement arena, such as ensuring enforceable requirements
and deadlines in permits and orders are clearly identified and included, dealing with companies
having financial difficulties, using CERCLA authorities, ensuring institutional controls are
effective and enforceable and long-term stewardship requirements are met, and increasing the
transparency and community involvement of enforcement efforts. OECA will continue to
provide training to both Regions and States on how to review financial test and corporate
guarantee submissions for compliance. After 18 months of implementing NESCA, EPA and its
State partners plan to assess the contribution of NESCA in achieving progress toward the 2020
Corrective Action Goals. Necessary modifications to NESCA will be made and additional tools
and guidance documents may be developed as a result of this assessment.
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6. Improve Transparency
At the end of the fiscal year or when otherwise available, OECA will make essential information,
such as the following, available to the public via OECA's web page, or by other means:
Results of the State Review Framework;
Results of the Annual Commitment reporting;
Results and highlights of compliance assistance efforts; and
Highlights of significant EPA and State enforcement actions.
Regions are expected to use their own comparable existing mechanisms to inform the
public. States are encouraged to do likewise.
Compliance data should distinguish State information from Indian country information.
Information should be made available to communities, including Tribes, who lack access
to the internet.
7. Relevant Policies and Guidances
Additional information about OECA's RCRA programs can be found at:
http://www.epa.gov/compliance/monitoring/programs/rcra/index.html
http://www.epa.gov/compliance/civil/rcra.html
http://www.epa.gov/compliance/cleanup
B. Toxic Substances Control Act (TSCA)
The Toxic Substances Control Act of 1976 provides EPA with authority to require reporting,
record-keeping and testing requirements; and restrictions relating to chemical substances and/or
mixtures; and the production, importation, use, and disposal of specific chemicals, including
lead-based paint, polychlorinated biphenyls (PCBs), and asbestos.
OECA addresses toxics problems through the following TSCA programs:
TSCA New and Existing Chemicals Programs (note: the term New and Existing
Chemicals Programs describes TSCA section 4, 5, 6, 8, 12 and 13), Subchapter I,
otherwise known as "core TSCA."
TSCA Lead-based Paint (LBP) Risk Reduction Program
TSCA Legacy Chemicals Program (PCBs and Asbestos Program which includes Worker
Protection Standards, the Model Accreditation Plan Program and the Asbestos Hazard
Emergency Response Act (AHERA))
Beginning in 2012, the TSCA programs will be managed nationally as one program rather than 4
distinct programs. The purposes of this change are to better leverage limited TSCA resources,
better coordinate enforcement activities across Regions and amplify the inspection and
enforcement presence. How these goals will be accomplished is discussed in the specific TSCA
sections below.
For Regional ACS planning purposes, Regions should target their 2012 TSCA ACS
commitments using a baseline of the last 3 years of their cumulative TSCA accomplishments
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(combined lead, new and existing chemicals, PCBs, and asbestos activities). If FY10 was
representative of the last 3 years of activity, it can be used as the baseline. Regions are expected
to have some investment in the TSCA program annually. The regions should then apply the
following recommended resource allocations:
The Regions should then apply the following recommended resource allocations:
60% of Regional inspections/enforcement actions should focus on lead based paint
with the majority being the Renovation, Repair and Painting (RR&P) rule.
25% of Regional inspections/enforcement actions should focus on PCBs including
used oil;
10% of Regional inspections/enforcement actions (for invested Regions) for New
and Existing Chemical should focus on Action Plan Chemicals or other targeted
priorities;
5% of Regional inspections, should focus on asbestos in schools and commercial and
state buildings in states without the Occupational Safety and Health Administration
(OSHA);
The region can deviate from this proposed allocation by up to 10% to allow for
flexibility for an investment in regional priorities (i.e., Region 5 PCBs in natural gas,
Region 2 PCBs in schools, etc.).
If flexibility beyond the recommended allocations above is needed, Regions should
contact OC to discuss.
COMMITMENT TSCA01: Project the number of FY2012 TSCA inspections.
1. Link with Office of Chemical Safety, Pesticides, and Prevention's Top Priorities
OECA addresses the Office of Chemical Safety, Pesticides, and Prevention (OCSPP) priorities
for TSCA programs in the following way:
Reduce Lead Risks: OECA provides overall direction to Regions and authorized states,
territories and tribes to promote compliance with all of the LBP rules with a significant
focus on the (RRP) rule.
Assess and Reduce Risks from New and Existing Chemicals: OECA focuses on
compliance with TSCA Section 5 with a particular focus on short chained and other
chlorinated paraffins, and other priority or Action Plan chemicals.
2. Aggressively Go After Pollution Problems That Make a Difference in Communities
TSCA's enforcement programs are significant to communities because they address chemicals
that can pose serious risks to human health. Lead-based paint is particularly dangerous to
children: exposure may cause reduced intelligence, learning disabilities, behavior problems and
slowed physical development. Because LBP is found in pre-1978 buildings, it is more common
in communities predominated by older housing, which usually are low-income, minority and EJ
communities. Asbestos in schools, if not properly managed, can expose children, teachers and
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other school staff to harm that may not manifest for years. PCBs bioaccumulate and thus cause a
variety of adverse health effects. Asbestos and PCBs are also generally found in older buildings.
Additionally, PCBs are generally found in older transformers, capacitors and some hydraulic
equipment and more recently in recycled and used oil. Inappropriate abatement and disposal of
asbestos and PCBs can be dangerous.
A national compliance monitoring strategy (CMS) for the TSCA program is being developed in
FY2011 that will include monitoring expectations, including ACS commitments, for regions in
FY2012. The CMS will cover all aspects of the TSCA compliance program.
a. TSCA New and Existing Chemicals Programs
The TSCA New and Existing Chemicals Program is exclusively a Federal program that provides
for review of the toxicity of chemicals prior to their manufacture and importation to prevent
unreasonable risk to human health and the environment. To assist the regions in targeting
inspections, OECA commits to working with OCSPP to obtain lists of facilities for targeting
inspections. Regions implementing the New and Existing Chemical Program should:
Focus TSCA compliance activities on chemical manufacturing, distribution, processing, use,
or disposal in emerging technologies and/or use of new chemicals.
Through inspections and enforcement actions as appropriate, focus on ensuring facility
compliance with:
o TSCA 5 - new chemicals requirements such as Pre-manufacturing Notice (PMN);
Significant New Use Rules (SNUR's); Low Volume Exemptions (LVE's), and on
chemicals of concern including short chained and other chlorinated paraffins, and
other priority or Action Plan chemicals or targets.
Target existing chemical reporting and record keeping requirements such as s TSCA 8(c),(d)
and(e) and the Inventory Update Rule;
Evaluate and prioritize tips and complaints and follow-up as appropriate. Targeting for
future inspections based on credible leads from tips and complaints should also be
considered. Regions implementing this program are also expected to follow-up on all
referrals received from headquarters, States, Tribes, and the public. Regions not
implementing this program should refer tips and complaints the Waste and Chemical
Enforcement Division within the Office of Civil Enforcement.
Obtain information through inspections and/or subpoena as appropriate. Initiate civil
enforcement actions, as appropriate, to bring facilities into compliance.
b. TSCA Lead Risk Reduction Program
Recent data show that tremendous progress has been made in the continuing effort to eliminate
childhood lead poisoning as a public health concern. Based on data from the Centers for Disease
Control (CDC), EPA has measured progress by tracking reductions in the number of children
with elevated blood lead levels (EBLLs) of 10 micrograms per deciliter or higher. Data released
in 2009 by the CDC indicate that the incidence of childhood lead poisoning, as defined above,
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has declined from approximately 1.6 percent of children in 2002 to 0.9 percent of children in
2006.
At the same time, however, new data are revealing adverse health effects to children at lower
lead levels than previously recognized. Thus, even though initial gains have been encouraging,
EPA wishes to achieve further reductions in the incidence of children with these lower, but still
significantly elevated BLLs. Monitoring and enforcement efforts to promote compliance with
LBP rules, particularly the RRP Rule, advance the goal of eliminating and preventing LBP
hazards, which are the primary single cause of childhood lead poisoning. These efforts, thereby,
support the Agency's mission to eliminate childhood lead poisoning.
Authorized states, territories, tribes, and Regions are expected to:
Participate in and support the national RRP compliance/enforcement strategy (under
development). The strategy establishes a sequence of coordinated activities aimed at
promoting compliance among specific sectors of the universe regulated by the RRP Rule, and
the pre-renovation education rule (PRE Rule)(§ 745.84), which is a component of the RRP
Rule. In implementing the national strategy, Regions are expected to focus their RRP/PRE
efforts in high-priority geographical areas with significant or wide-spread childhood lead
poisoning (e.g., lead "hot spots"). Also, in those geographical areas, Regions should employ
integrated strategies to monitor, enforce and achieve compliance with the other components
of the LBP program: the § 1018 disclosure rule (745 Subpart F), and § 402(a) abatement rule,
as appropriate for the Region and state/tribe.
Also, Regions should:
o Conduct at least 60 percent of LBP inspections for compliance with pre-renovation
education (PRE) requirements (§ 745.84), RRP recordkeeping and reporting
requirements (§745.86), or work practice standards through on-site inspections (§§
745.85 and 745.227).
o Conduct no more than 40 percent of LBP inspections for the § 1018 disclosure rule (§
745 Subpart F).
o Section 1018-only inspections should be minimized, and linked with other LBP
compliance inspections whenever practical, to provide a more comprehensive
approach to addressing compliance with all applicable LBP regulations.
o Initiate civil enforcement actions, as appropriate, and whenever necessary to protect
communities by addressing and ultimately resolving violations of the RRP rule, PRE
Rule, Disclosure Rule, work practice standards (§§ 745.85 and 745.227), and
recordkeeping and reporting requirements (§§ 745.86 and 745.227(1)).
o Regions should work with authorized states and tribes to ensure they are familiar with
national guidance and implement their programs consistent with the guidance.
In addition, Regions should:
Conduct targeting consistent with the national RRP strategy, including the identification of
geographical lead poisoning hot spots.
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In areas where Regions conduct integrated strategies as part of the national RRP strategy or
otherwise, include methods to better target compliance activities, such as partnering with
state/tribal and local health departments and health care providers to identify lead hot spots
and individual properties associated with EBLL children.
Work with their LBP program counterparts to encourage states/tribes to seek authorization
for the RRP program.
Conduct appropriate oversight of authorized state/tribal Section 402 and 406 programs.
Because of variations in housing arrangements at federal facilities, particularly at some
military bases, regions should closely investigate the applicability of the LBP regulations to
the particular facilities housing.
c. Legacy Chemicals Program (PCBs and Asbestos)
The Legacy Chemicals Program attempts to lessen chemical risk and exposure through
reductions in use and safe removal, disposal and containment of certain prevalent, high-risk
chemicals, known generally as legacy chemicals. Some of these chemicals were used widely in
commerce and introduced into the environment before their risks were known
TSCA PCBs
PCBs are a persistent toxin (PBT) that bioaccumulates in food chains and poses serious risks to
human health and the environment. Although PCB manufacture is banned, certain uses
(transformers/capacitors) continue to be allowed under conditions which ensure that PCBs are
managed properly and not released into the environment. PCBs have also been identified in
building materials (caulk, paint, and insulation) and electrical equipment (fluorescent light
ballast capacitors and potting materials) used in schools, raising concerns over potential exposure
to school children, teachers, and other school staff. PCBs (including export for disposal) are of
international concern. In 2012, Regions are encouraged to identify, inspect and take enforcement
action on used or recycled oil containing PCBs. Over the past several years there has been a
significant quantity of fuel and other oil containing PCBs due to improper management. For this
reason, we are suggesting targeting PCBs in oil.
Regions are expected to:
Follow-up on tips and complaints based on potential risk, including spills. Response may
include referral to States that have TSCA PCB compliance monitoring grants for further
investigations.
Use targeting tools to identify the most important PCB sources, including PCBs in oil, to
conduct inspections in each state and Indian country, including use of screening
tools/approaches, such as the Environmental Justice Strategic Enforcement Assessment
Tool (EJSEAT), and other information, such as community input. For States with TSCA
PCB grants, investigative work may be provided by the State rather than EPA.
Each comprehensive strategic plan should describe at a minimum, how the Region will
cover all significant PCB commercial storage and disposal facilities within the plan's
cycle. These inspections may be conducted in conjunction with RCRA TSD inspections
provided the inspector comprehensively evaluates compliance with both programs.
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Continue to implement use of PCB Tablets and PCB inspection software in inspections.
TSCA Asbestos
Asbestos may be present in schools and, if disturbed and released into the air, poses a potential
health risk to school children, teachers, custodial staff, and others in the school. There are no
immediate symptoms of exposure; health effects may manifest 15 or more years after exposure.
EPA requires Local Education Agencies (LEAs) to inspect for asbestos. When asbestos is found,
LEAs must provide notification to parents and teachers, develop and implement management
plans so that asbestos is not disturbed, or is properly removed, during renovations or other
activities (i.e., drilling to install electrical or communications lines).
In addition, the TSCA asbestos worker protection regulations offer protection for certain state
and local government employees who are not protected by the Asbestos Standards of OSHA.
Employees who are involved in asbestos related construction activities, certain custodial
activities, or certain activities associated with asbestos-containing brakes and clutch plates are
employed in occupations that pose an increased risk of potential exposure to asbestos. State and
local government employers must ensure that the employees engaged in these potential asbestos
exposure activities comply with applicable OSHA standards in order to ensure their employee's
safety and minimize the potential for exposure to asbestos fibers while performing their job
functions.
Authorized States, Tribes, and Regions are expected to:
Within a reasonable period of time, investigate and respond (including taking
enforcement action where appropriate) to any tips/complaints containing allegations that
provide a reasonable basis to believe that a violation has occurred. Response may
include referral to States that have TSCA asbestos compliance monitoring grants.
Conduct inspections and take appropriate enforcement action in each State and in Indian
country to assure equitable protection and ensure compliance with the TSCA asbestos
regulations. State inspections under the TSCA Asbestos/AHERA grant can provide
coverage for those States instead of the Region.
States that have "waiver" status should enforce under their state law. States that are "non-
waiver" will forward their inspection reports to the regional office for appropriate
enforcement action, as necessary.
In addition, Regions are:
Encouraged to conduct compliance inspections (as an alternative to inspections of LEAs)
at state and local government facilities to monitor compliance with the asbestos worker
protection requirements in states where state and local government employees are not
protected by the Asbestos Standards of the OSHA;
Encouraged to coordinate, as appropriate, TSCA asbestos inspections at LEAs with
inspections being conducted under other TSCA programs (e.g., lead, PCB in caulk)
and/or CAA asbestos NESHAP inspections;
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Encouraged to provide adequate oversight of state/tribal programs; and
Encouraged to target inspections at LEAs with: building stock of an age that is more likely
to contain asbestos, particularly those that are undergoing renovation or energy efficiency
upgrades that may disturb asbestos; at LEAs that have never been inspected; at LEAs that
have not been inspected within the past ten (10) years; at LEAs that have previously been
found in violation and/or been subject to enforcement action; and at private, religious,
and charter schools. Websites for TSCA Asbestos Information on LEAs:
o Department of Education - Public School LEAs:
http://nces.ed.gov/pubs2010/pesagencies08/tables.asp
o US Charter Schools - Current number of Charter Schools, by State:
http://www.uscharterschools.org/pub/uscs_docs/sp/index.htm
o Parochial School and Diocesan Locator:
http://www.ncea.org/news/SchoolDiocesanLocator.asp and
http://www.catholicusa.com/catholic schools online/catholic schools.htm
Required to ensure that state and tribal inspectors who inspect on behalf of EPA are trained
and credentialed per Guidance for Issuing Federal EPA Inspector Credentials to Authorize
Employees of State/Tribal Governments to Conduct Inspections on Behalf of EPA (2004);
For inspections conducted with EPA credentials, review and provide feedback that
addresses the quality of the inspection/reports and the action taken by the Region, if any.
3. Reset Our Relationships with States
The Regions should work with States and Tribes to identify any obstacles to implementation of
the expectations above and work to resolve them. This includes convening routine and regular
meetings between the Region and States to discuss progress towards meeting annual program
and enforcement commitments, and how the State has been performing overall in its
implementation of the program.
The Grants Administration Division issued guidance for the TSCA grants program that becomes
effective on October 1, 2012. This guidance requires that negotiated grant workplans
prominently display the following three Essential Elements: Essential Element 1 - Strategic Plan
Goal; Essential Element 2 - Strategic Plan Objective; and Essential Element 3 - Workplan
Commitments plus time frame. Regional Program Offices must electronically enter workplans
and progress report information into an IT application currently being developed.
Where States are not meeting performance expectations, Regions should take action to enforce to
address serious violations. Regions should focus oversight resources to the most pressing
performance problems in States and should work to demonstrably improve state performance
through these actions. OECA and the Regions will use a variety of mechanisms to ensure
adequate oversight, including regular meetings and consultations with States/Tribes, grant
reviews and oversight inspections.
Regions should provide:
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Regional updates on actions and outcomes through discussions with OECA (generally,
through existing channels of communication).
Assurance that authorization agreements, which authorize employees of state and tribal
governments to conduct inspections on EPA's behalf, are in place with States and Tribes
that receive TSCA Compliance Monitoring grants for PCBs, and that training
requirements are met.
Review of state inspection reports, feedback to States, and enforcement actions as
appropriate, where inspections are conducted by States with EPA credentials.
Additionally, Regions should provide reports to OECA in accordance with Guidance for
Issuing Federal EPA Inspector Credentials to Authorize Employees of State/Tribal
Governments to Conduct Inspections on Behalf of EPA (2004).
Consultation with Tribes on the central role that enforcement and compliance plays in
EPA's direct implementation program and oversight of approved tribal programs.
On a program specific basis:
a. TSCA Lead-Based Paint Program (LBP)
To ensure national consistency, OECA's role is to provide appropriate oversight of Regional
LBP programs.
Regions should focus primarily on State/Tribal program oversight and capacity-building
to ensure States and Tribes are appropriately using tools to help ensure compliance, and
more importantly, integrating those tools to help effectively reduce elevated blood lead
levels (EBLLs) and LBP hazards in identified "hot spots"; support States/Tribes on
complex or multi-State/Tribal compliance issues; and consult with States/Tribes to
identify issues that may warrant areas of national focus in federal jurisdictions.
b. PCBs
Obtain early phase-out of PCBs as a condition of settlement.
Continue the use of electronic technology in the field.
c. TSCA Asbestos
Encourage States and Tribes to develop their own regulations and apply for a "waiver"
where applicable.
Ensure that authorization agreements, which authorize employees of state and tribal
governments to conduct inspections on EPA's behalf, are in place with states/tribes that
receive TSCA Compliance Monitoring grants for TSCA Asbestos (non-waiver states
only).
4. Improve Transparency
The Regions should:
FY2012 OECA NPM Guidance Page 53
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Work with the States and Tribes using EPA credentials to ensure that the data on
inspections they conduct on EPA's behalf is input into national databases. For waiver
States, ensure compliance and enforcement data are provided in aggregate form as part of
midyear and end of year evaluation reports. (Not applicable to lead program.)
Enter all federal inspections (including ICDS) and enforcement cases into ICIS.
Publicize regional enforcement actions taken through press releases.
Distinguish state compliance data from Indian country information.
Make information available to communities, including Tribes, who may lack access to
the internet.
5. Relevant Policies, and Guidances
Additional information about OECA's TSCA programs can be found at:
http://www.epa.gov/compliance/monitoring/programs/tsca/index.html
http://www.epa.gov/compliance/civil/tsca/index.html
http://www.epa.gov/compliance/monitoring/programs/tsca/asbestoes.html
C. Federal Insecticide, Fungicide and Rodenticide Act (FIFRA)
EPA and the public rely on pesticide manufacturers and formulators to provide accurate
information about pesticides and associated risks. Unregistered and ineffective pesticides,
as well as products making false or misleading public health protection claims, pose a potential
public health threat when the public makes inappropriate choices based on inaccurate or
misleading information. Products used in agricultural or structural pest control settings may pose
health risks to those working with or exposed to those chemicals.
A major focus of EPA's FIFRA program is to ensure compliance by pesticide registrants and to
provide assistance, training, and oversight to States and Tribes carrying out FIFRA related
compliance and enforcement activities under cooperative enforcement agreements. The statute
gives States primary compliance monitoring and enforcement responsibility for the use of
pesticides within their respective jurisdictions. Under FIFRA, EPA directly implements primary
use enforcement responsibility in Indian country. However, through enforcement agreements
with EPA, Tribes are allowed to enforce similar provisions under their own tribal codes.
1. Link with Top Office of Pesticide Programs Priorities
OECA addresses top Office of Pesticide Programs (OPP) priorities for the FIFRA program in the
following ways:
Effective Management of State and Tribal Grants/Cooperative Agreements: The FIFRA
State and Tribal Assistance Grant (STAG) Program seeks to assist states, territories, the
District of Columbia and Indian tribes in developing and maintaining comprehensive
pesticide programs that address all aspects of pesticide enforcement and special pesticide
initiatives, to sponsor cooperative surveillance, monitoring and analytical procedures, and to
FY2012 OECA NPM Guidance Page 54
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encourage regulatory activities within the states and tribes. OECA addresses this priority in
its State Grant Guidance, issued jointly with OPP.
Pesticide Occupational Worker Safety: FIFRA's Worker Protection Standards provide
critical protection to certain workers and handlers of pesticides in agricultural, nursery,
greenhouse, and forestry occupations. OECA addresses this priority in both the State Grant
Guidance and by including aspects of this priority in both the Fumigant/Fumigation and
Worker Safety focus areas of the NPM guidance.
Pesticide Container-Containment Regulation Implementation: Regulations covering
pesticide container and containment requirements are still being phased in and most
states/tribes are actively engaged in outreach and compliance assistance activities. OECA
addresses this priority in its State Grant Guidance and has included it as a focus area in the
NPM guidance.
Pesticides and Water Resource Protection: Protecting water bodies from pesticide
contamination helps assure the safety of those water resources. OPP has focused regulatory
efforts, including establishing restrictive use requirements, on key pesticides of concern. In
addition, a court ruling determined pesticides used in aquatic settings are not exempt from
regulation under NPDES. Activities are underway to develop a process to bring pesticide use
into compliance with the NPDES regulations. OECA recognizes protection of water
resources from pesticide contamination is important and, as part of its core pesticides
program, encourages the Regions to support State efforts to monitor compliance and enforce
against noncompliance.
Antimicrobial Hospital Disinfectants Efficacv/Misbranding: This area directly impacts
public health by ensuring the safe and effective use of disinfectants in hospitals. OECA has
been cooperating with OPP for several years in this effort and will take enforcement action
on products that fail efficacy testing, taking action in accordance with the December 2009
FIFRA Enforcement Response Policy. OECA will continue to support the antimicrobial
testing program through the core FIFRA compliance monitoring and enforcement program.
Soil Fumigation Compliance Assistance: Due to a re-evaluation of the risks associated with
the use of soil fumigants, OPP has required changes to product labeling and use directions for
highly toxic pesticides. In addition to compliance monitoring and enforcement relating to the
use of all fumigants, including soil fumigants, OECA is specifically addressing this priority
in the NPM guidance through encouraging outreach/compliance assistance activities to
support implementation of the new label changes for soil fumigants. Soil fumigation is
included in both the Fumigant/Fumigation and Worker Safety focus areas. OECA's State
Grant guidance also addresses soil fumigation through outreach, education, and compliance
activities.
2. Aggressively Go After Pollution Problems That Make a Difference in Communities
EPA will ensure compliance with and effective enforcement of FIFRA regulatory requirements.
The core program should include compliance and enforcement activities covering: pesticide
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registration and labeling, data quality requirements (FIFRA Good Laboratory Practice
Standards), efficacy and compositional integrity of hospital disinfectant products, pesticide
producing establishment registration and annual production data reporting, import and export
requirements, and registrant reporting of unreasonable adverse effects. The core program also
supports efforts to protect human health and the environment, including water resources, through
support and oversight of state and tribal monitoring and enforcement of pesticide use/misuse.
In conducting this work, Regions are expected to place special emphasis on the key focus areas
identified below. All Regions are expected to participate in Mandatory Focus Areas A and B
and to choose one additional area of participation from Optional Focus Areas C through F.
(State and tribes with cooperative enforcement agreements may also become involved in
supporting these activities, as appropriate, by including relevant activities in their negotiated
cooperative agreements.)
Mandatory Focus Area A: Imports
EPA's enforcement program continues to address the illegal importation of noncompliant
pesticide products into the United States by bringing enforcement actions against importers and
others; providing compliance assistance to manufacturers, importers and brokers; and working
with other governments, agencies and stakeholders to prevent and reduce risks of unsafe
products entering our country.
Importation of pesticides and devices is governed by FIFRA Section 17(c). All imported
pesticides intended for use in the United States must be registered as required by Section 3 of
FIFRA before being permitted entry into the U.S. Pesticide devices that are imported, although
not required to be registered, must be produced in a registered producing establishment, and must
not bear any statement, design, or graphic representation that is false or misleading in any
particular. Pesticides and devices must be properly labeled in accordance with FIFRA and Title
40 of the Code of Federal Regulations, Section 156. When importing pesticides or devices to the
U.S., the importer must submit to the appropriate EPA regional offices on EPA Form 3540-1
"Notice of Arrival (NOA) of Pesticides and Devices." Department of Homeland
Security/Customs and Border Protection (CBP) regulations prohibit the importation of pesticides
without a completed Notice of Arrival (NO A).
Illegal pesticide imports include a wide range of products, such as naphthalene mothballs and
related products (moth tablets, clothes hangers and urinal cakes), chlorine pool disinfectants,
insecticidal chalk, roach killers, mosquito coils and rat poisons. Illegal pesticide imports, which
can present significant human health and environmental risks; have been linked to poisonings of
children and pets resulting from use of these products.
EPA Regions will be the primary source of inspections and enforcement for this focus area.
States may become involved through Region-to-State referrals to monitor import compliance, or
States may encounter imported products during the course of their other compliance monitoring
inspections. EPA should make their States aware of EPA's strong interest in import compliance
and be should encourage them to cooperate and collaborate with EPA when situations warrant.
FY2012 OECA NPM Guidance Page 56
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Regions should work with U.S. Customs and Border Protection (USCBP) to identify pesticides
and/or pesticide devices in violation of FIFRA and prohibit illegal imports from entering the U.S.
channels of trade. Regions should conduct pesticide import inspections based on identified
targets at border crossings and other ports of entry, conduct sweeps and take samples, when
appropriate.
In addition, Regions should:
Monitor import compliance through inspections at the designated destination point for the
imported products. Such inspections would be conducted after the imported pesticides have
cleared U.S. Customs and have entered into the country.
Place special emphasis on compliance in Foreign Trade Zones.
Focus on importers with a history of noncompliance or significant importation activity from
countries frequently associated with noncompliant shipments.
Screen for potential discrepancies concerning country of origin sources for active ingredients
used to produce registered pesticides while reviewing Notices of Arrival (NOAs). Where
potential discrepancies are noted, follow-up production establishment inspections (PEIs) may
be warranted to further investigate the matter.
Conduct educational campaigns in urban neighborhoods that are at high risk for using illegal
imports to facilitate reporting of tips/complaints from the public about the sale/distribution of
illegal pesticide imports.
Take enforcement actions, as appropriate, to ensure optimum deterrence effect and
compliance impact.
Address noncompliance by taking enforcement action against violating import shipments and
then, when appropriate, develop cases that address corporate-wide noncompliant behavior.
Mandatory Focus Area B: Supplemental Registrations
Supplemental registrations are a continuous source of concern for regulators across the country.
States, which conduct thousands of marketplace inspections each year, have raised concern over
these labels for years, citing them as a major source of noncompliance. Supplemental
registrations are distributor labels approved for marketing as a sub-registration to a registered
pesticide. These products are marketed by the distributors using labels that are slightly modified
versions of the base product label. Although required to be consistent with the labels of the basic
registered products, distributors have frequently deviated substantially from the accepted labels.
Such unapproved revisions to the labels and product labeling can lead to misuse and
misapplication as well as pose significant risks to the users who rely on product labels to inform
them about proper and safe pesticide use. These labels have not historically been closely
monitored through the Agency's pesticide registration process. Due to the potential risk
associated with the use of improperly labeled pesticides, it is important that EPA aggressively
pursue compliance for supplemental registrations.
Supplemental registrations have been issued for a wide range of pesticide products, including
agricultural chemicals, pesticides used for residential pest control, lawn and garden pesticides, as
well as for disinfectants and other antimicrobial products. They also represent pesticides in
every toxicity category from Tox 1 Restricted Use Pesticides to minimal risk products.
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To address noncompliance in this focus area, emphasis will be placed on targeting registrants
with a large number of current supplemental registrations or registrants marketing Tox 1
category pesticides under distributor brand name labels and doing a comprehensive review of
those distributor label products. Product compliance will be determined through comprehensive
review of product labels and labeling and product chemistry, when appropriate.
Each Region will conduct PEIs and other marketplace inspections, as appropriate, and as
coordinated with the states, to monitor compliance in this focus area. States may wish to
participate, too, and can be a significant source of information about noncompliant supplemental
registration products.
Regions should monitor for label/labeling compliance, product composition, and compliance
with the provisions as described in to 40 CFR § 152.132, including the restrictions on where and
how a supplemental distributor pesticide may be produced and packaged. This should include
any contract manufacturing agreement(s) that should be in place.
Enforcement actions should be developed to address corporate-wide compliance and not focus
on a single product noncompliance. In addition, Regions should coordinate with the Office of
Civil Enforcement's Waste Chemical Enforcement division and other Regions in developing
corporate-wide cases.
Regions are expected to take enforcement actions, as appropriate, to ensure optimum deterrence
and compliance impact.
Optional Focus Area C: Fumigants/Fumigation
Fumigants are a class of highly toxic pesticides that are efficacious in a gaseous stage, making
them very hazardous to handle and use. These products have a wide range of application use,
including treatment of residential structures, warehouses, transportation vehicles, grains and
other agricultural commodities, and soil. Improper or inadequate use directions and safety
precautions on the product labeling and improper use of these products often result in serious
exposure incidents potentially leading to death or hospitalization. Due to the potential risk
associated with fumigant use, it is critical that EPA and the States work collaboratively to
proactively monitor compliance with existing product labeling requirements, as well as proper
use of fumigant products.
In FY2008, OPP released a Reregi strati on Eligibility Decision (RED) that requires important
label changes incorporating significant new safety measures for soil fumigant pesticides to
increase protections for agricultural handlers, workers and bystanders (e.g., people who live,
work, or otherwise spend time near fields that are fumigated). The RED addresses the fumigant
pesticides chloropicrin, dazomet, metam-sodium/metam-potassium (methyl isothiocyanate), and
methyl bromide. Labeling changes required by the RED started appearing in the market place
in 2010, although EPA has delayed implementation of the second phase of required label
changes. Consistent with OPP's fumigant initiative, outreach and compliance monitoring will be
promoted to make users aware of future labeling changes for soil fumigants.
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Although the Soil Fumigant RED addresses significant regulatory changes for those products and
will require a focused effort to ensure compliance with the new safety requirements, the NPM
Guidance's fumigants/fumigation focus area is not primarily targeted on soil fumigant use
compliance. Instead, this focus area encompasses product regulatory compliance and
use/application compliance for all areas of fumigation including structural (residential and
commercial), transportation vehicles and containers, soil, agricultural commodities, and other
products.
Targeting should consider production factors (facility location, production volume, and product)
as well as use/application factors (use patterns of concern and volume/frequency of use). For
FY2012, participating Regions are expected to implement one or more of the compliance
monitoring approaches identified below and to initiate appropriate enforcement actions.
EPA has primary responsibility for monitoring compliance and initiating enforcement action
against violators of pesticide user requirements where states lack primacy and in Indian country
unless a Region and a tribe maintain a cooperative enforcement agreement. In addition, States
have primary responsibility for monitoring compliance and initiating enforcement action against
violators of pesticide use requirements (referred to as "primacy). Regions are encouraged to
determine whether there are opportunities for federal cases to support state efforts and initiate
federal cases that arise in Indian country. Federal involvement or support can provide significant
benefits by addressing noncompliance from a national corporate-wide perspective, facilitating
compliance efforts involving multiple States and/or Regions, and enhancing public awareness.
OECA will work with OPP to obtain FIFRA Section 6(a)(2) information across a broad class of
pesticide fumigants including structural, grain, and soil, among others. Section 6(a)(2)
information, together with information regarding fumigant incidents from the States, press and
other available sources, will help target fumigant uses where an enforcement monitoring
presence may significantly deter future violations.
Regions should work with their States to identify federal and state PEI opportunities, with
special emphasis placed on the priority fumigants frequently involved in exposure incidents (i.e.,
sulfuryl fluoride, methyl bromide, aluminum phosphide, zinc phosphide, metamsodium, and
chloropicrin). State PEIs can be applied toward meeting negotiated PEIs commitments within
existing cooperative agreements. PEIs conducted by regional inspectors will continue to help
build regional expertise. Physical sampling and analysis and documentary sampling is
encouraged. Physical samples of fumigant gases should not be taken; only documentary samples
of the labeling, container, and other appropriate materials should be sampled. Physical samples
of non-gas fumigants can be sampled and analyzed.
Regions should work with their States to identify opportunities for fumigation use/misuse
inspections in a variety of venues, with special emphasis on those use patterns frequently
associated with exposure incidents (i.e., residential buildings, commercial grain elevators and
granaries, on-farm granaries, seed warehouses, and agricultural crop soils). Where appropriate,
these State inspections may be applied toward negotiated cooperative agreement use/misuse
inspection commitments.
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When monitoring compliance in application settings subject to FIFRA's Worker
Protection Standards (WPS), such as on-farm use of grain or soil fumigants, compliance with the
WPS labeling requirements should also be monitored.
Consistent with the State Grant Guidance, States should conduct education, outreach
and compliance assistance activities for communicating the new labeling requirements for soil
fumigants. Although implementation of the soil fumigant RED labeling requirements will focus
on training and compliance assistance through FY2012, in instances of misuse or abuse,
appropriate enforcement response should be taken.
EPA should engage in each of the above actions where the Region directly implements the
FIFRA program, including in Indian country.
Enforcement actions should be pursued under both State and Federal authorities, as appropriate.
Similarly, EPA will pursue enforcement actions under FIFRA when noncompliance arises in
Indian country. Significant use or product compliance violations discovered during state or tribal
investigations should be considered for referral to EPA for federal enforcement, when
appropriate. Regions should work with States and Tribes to identify opportunities within
existing cooperative agreements for federal involvement or case support (particularly in cases
involving human exposure, death, or other serious non-compliance). Headquarters will provide
assistance, as needed, to States, Tribes, and Regions in support of enforcement actions.
Headquarters will develop a plan to coordinate filing of enforcement cases to ensure optimum
deterrence effect and compliance impact.
Optional Focus Area D: Worker Safety
Agricultural farm workers and pesticide applicators face a disproportionately high risk of
exposure to pesticides (from mixing, loading and applying pesticides; hand labor tasks in
pesticide treated crops; and pesticide drift from neighboring fields). Studies show that farm
worker families have higher levels of pesticide exposure than non-farm worker families (take-
home exposure transfer of pesticide residues and proximity of housing to treated areas). There
are 2 million farm workers in the US, over a million certified applicators, and 2-3 million
noncertified applicators applying pesticides under the supervision of certified applicators. It is
important to protect farm workers from occupational pesticide hazards to ensure their safety in
the workplace and viability as a community.
Under FIFRA, States with primacy enforce pesticide use, including the worker protection
standards. States with primacy also conduct compliance monitoring inspections. Regions are
encouraged to determine whether there are opportunities for federal cases to support state efforts.
Where EPA implements FIFRA, including in Indian country, the Agency enforces requirements
governing pesticide use and conducts compliance monitoring inspections. Tribes with
cooperative enforcement agreements with EPA may conduct compliance monitoring inspections
under their own tribal codes.
To optimize the risk reduction potential of compliance monitoring, Regions are expected to place
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particular emphasis on farming activities that typically involve frequent use of highly toxic
pesticides, such as in fruit and vegetable production and on-farm grain and soil fumigation.
Compliance monitoring and enforcement activities should include product and use
inspections.
Performance expectations for an active federal cooperative compliance/enforcement role within
the Worker Safety focus area include:
Regions should work with their state and tribal partners to target federal and state PEIs
(focusing on high toxicity pesticides subject to FIFRA's Worker Protection Standards
(WPS) labeling requirements and associated with high-risk applications/uses such as fruit
and vegetable production or on-farm grain and soil fumigation) to ensure label
compliance.
Regions should monitor use compliance in application settings (e.g., on-farm grain or soil
fumigation, applications to fruit and/or vegetable crops) subject to WPS and monitor
compliance with the WPS labeling requirements. Focus should be on pesticides with
high risk for exposure.
Enforcement actions should be pursued under State, Federal, or Tribal authorities, as
appropriate.
In order to optimize the deterrent impact of the enforcement action, significant misuse
violations should be investigated in a comprehensive manner to determine comprehensive
compliance with FIFRA.
States and tribes should be encouraged to refer use and non-use cases to EPA, when
appropriate.
Regions are expected to work with States to identify opportunities within existing
agreements for federal involvement or support (particularly cases involving exposure or
death).
Significant use or product compliance violations discovered during State or Tribal
investigations should be considered for referral to EPA for federal enforcement, when
appropriate.
Headquarters will provide assistance, as needed, to States, Tribes, and Regions in support
of enforcement actions.
State and tribal inspectors who inspect on behalf of EPA must be trained and credential
per Guidance for Issuing Federal EPA Inspector Credentials for Authorize Employees of
State/Tribal Governments to Conduct Inspections on Behalf of EPA (2004)
Optional Focus Area E: Retail Marketing
Until recently, EPA has focused enforcement against the producer or registrant of violative
product(s). However, retailers of noncompliant products must also comply with FIFRA. One
action against a retailer may result in bringing numerous pesticides into compliance with FIFRA.
Taking enforcement at the retail level, as well as at the producer or registrant level, can have a
very significant impact on gaining product compliance. Deterrence likely increases due to
heightened end-use consumer awareness and the adverse publicity generated against the retail
store, the product, and the manufacturer.
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Retail marketers of pesticide products are positioned to directly interact with the consuming
public, so any enforcement action taken against products being offered for sale is quickly noted
by the buying public and, as a result, purchasing patterns of the consumers can be quickly
altered, thus creating a significant financial impact on all businesses with a financial interest in
the distribution and sale of the pesticide product(s) involved. This provides a tremendous
incentive for registrants to quickly return the product(s) to compliance so that a positive business
relationship with retailers can be preserved and a positive image can be presented and/or restored
with the consuming public.
Regions should focus on national or regional retail chains operating multiple stores nationwide
or in a multi-state area. Such stores often market similar products throughout their network of
stores so that compliance issues can have corporate-wide implications. Such consumer-based
retail stores typically offer a wide variety of pesticide device products, so addressing
noncompliance at this level can immediately impact multiple pesticide producers.
Alternatively, Regions may elect to target major distributors who sell directly to specialized
niche markets rather than to the general public. Examples of these retailers might be distributors
that sell pesticide products and other supplies directly to hospitals, beauty salons and barber
shops, funeral homes, and restaurants. These industries typically do not deal directly with
traditional retail outlets for their supplies but instead purchase from specialized niche
distributors. These direct-retailers often handle very specialized products not commonly found
in the retail stores targeted to the general public and, as a result, compliance may not be as
closely monitored. Additionally, many of these retailers handle distributor-label disinfectants, a
product sector which has a long history of noncompliance.
Performance expectations for the retail marketing focus area include:
Regions should conduct compliance monitoring inspections at targeted retailers.
Regions should work with their state and tribal partners to encourage producer
establishment and marketplace inspections in support of this focus area, including
targeting follow-up PEIs at producers of violative products discovered at the retail
inspections. Regions may consider making inspection referrals to the states/tribes to
follow-up on leads and otherwise supplement federal efforts.
Regions are expected to take enforcement actions, as appropriate, to ensure optimum
deterrence effect and compliance impact.
Optional Focus Area F: Container/Containment
To ensure effective implementation of the new container/containment regulations, Regions,
states and tribes should monitor compliance with the requirements in all areas of the regulated
universe and for all aspects of the container/containment rule. In particular, inspections should
focus on compliance with container design and labeling, residue removal, and containment
requirements for registrants, re-fillers, agricultural retailers, commercial applicators, and custom
blenders, as appropriate. User inspections, conducted by states and tribes, should focus on
compliance with label directions for storage, cleaning, and disposal of containers.
States and tribes have been actively addressing the new regulations and are likely to continue
that emphasis under the State Grant Guidance.
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For Regions electing to participate in the container/containment focus area, performance
expectations include:
Conducting compliance monitoring inspections at targeted producers, distributors, and
other regulated non-user entities subject to the container/containment rule.
Working with states and tribal partners to encourage a full range of user and non-user
inspections to monitor all aspects of compliance for the container/containment rule in
support of this focus area. States and tribes should be encouraged to refer significant
noncompliance cases to EPA for enforcement action.
Taking enforcement actions, as appropriate, to ensure optimum deterrence effect and
compliance impact.
Commitment FIFRA-FED1: Project regional (federal) FIFRA inspections, including those at
federal facilities. Each Region should conduct a minimum often (10) FIFRA inspections. In the
Comment Section, provide the number of federal facility inspections.
3. Reset Our Relationships with States
The Regions should work with States and Tribes to implement the expectations above, including:
Convene routine and regular meetings between the Region and State to discuss progress
towards meeting annual program and enforcement commitments, and how the State has
been performing overall in its implementation of the program. Note: meetings can be via
conference calls but at least one meeting each year should be face-to-face. Regions may
rely upon existing communications with states to meet the intent of this requirement.
Where States are not meeting performance expectations, Regions should take
enforcement to address serious violations. Regions should focus oversight resources on
the most pressing performance problems in States and should work to demonstrably
improve state performance through these actions. Regions need to take action when
necessary to communicate what needs attention to achieve the goals of the federal
environmental laws and to ensure a level playing field among States.
Negotiate, oversee the implementation of and review state and tribal performance under
the pesticide enforcement cooperative agreements following existing policy and
guidance.
When doing mid- or end-of-year reviews, include a review of cases based on complaints
by farm-workers and those involving one of the NPM guidance focus areas to evaluate
whether the enforcement response was appropriate.
Provide States and Tribes targeting assistance, especially related to inspections of
producer establishments.
Consistent with EPA's Policy on Consultation and coordination with Indian Tribes;
OECA's Guidance on the Enforcement Principles Outlined in the 1984 Indian Policy
(January 17, 2001; and Questions and Answers on the Tribal Enforcement Process (April
17, 2007), the Regions should consult, as appropriate, with potentially impacted tribal
governments when conducting inspections and addressing noncompliance at tribal and
non-tribal facilities in Indian country.
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4. Improve Transparency
Currently, OECA is exploring ways to modernize and update databases that contain information
on pesticide inspections and enforcement action by state and tribal grantees FIFRA-TSCA
Tracking System/National Compliance Database (FTTS/NCDB) that will improve data quality,
and provide more timely data entry and public access. Regions are
expected to continue to assure the timely and accurate entry of state and tribal performance data
and their own federal inspection and enforcement data.
Regions should assure timely and accurate entry of state and tribal performance data and federal
inspection and enforcement data.
5. Relevant Policies and Guidances
Additional information about OECA's FIFRA programs can be found at:
http://www.epa.gov/compliance/monitoring/programs/fifra/index.html
http://wwwp.epa.gov/compliance/monitoring/programs/fifra/wps.html
http://www.epa.gov/compliance/civil/fifra/index.html
Policies and guidance pertinent to the FIFRA focus areas can be found at the following:
FY2011-2013 Grant Guidance:
http://www.http://www.epa.gov/compliance/state/grants/fifra.html
FIFRA Enforcement Response Policies:
FIFRA State Primacy Enforcement Responsibilities: Final Interpretive Rule:
http://www.epa.gov/compliance/resources/policies/state/grants/fifra/1983frnotice.pdf
Procedures Governing the Rescission of State Primary Enforcement Responsibility for
Pesticide Use Violations:
http://www.epa.gov/compliance/resources/policies/state/grants/fifra/1981frnotice.pdf
EPA WPS Agricultural Inspection Guidance:
http://www.epa.gov/compliance/resources/policies/state/grants/fifra/08-10-appendix4c.pdf
Factors To Consider When Establishing A Risk-Based Targeting Strategy For Worker
Protection Outreach And Compliance Monitoring Activities:
http://www.epa.gov/compliance/resources/policies/state/grants/fifra/08-10-appendix4d.pdf
Multilingual Labeling for Imports:
http://www.epa.gov/compliance/resources/policies/monitoring/fifra/imports/multilanglabel.pdf
Questions and answers on supplemental labeling, effective date, registration status for
labeling purposes, foreign purchaser acknowledgement statements, and confidentiality:
http://www.epa.gov/compliance/resources/policies/monitoring/fifra/imports/supplabel.pdf
Questions and answers on research and development pesticides and active ingredient
concentrations:
http://www.epa.gov/compliance/resources/policies/monitoring/fifra/imports/ai.pdf
FY2012 OECA NPM Guidance Page 64
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FIFRA Inspection Manual:
http://www.epa.gov/compliance/resources/publications/monitoring/fifra/manuals/fifra/index.html
WPS Inspection Manual:
http://www.epa.gov/compliance/resources/publications/monitoring/fifra/manuals/wps/index.html
Project Officer Manual: http://intranet.epa.gov/oeca/oc/ag/manual.html
FY2012 OECA NPM Guidance Page 65
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D. Specific Comprehensive Environmental Response Compensation and Liability Act
(CERCLA) Enforcement Program Performance Expectations
1. Link with Top OSWER Priorities
OECA addresses top OSWER priorities for CERCLA in the following ways:
Land Revitalization: Through its Brownfields program, EPA will continue to provide for
the assessment and cleanup of Brownfield sites, to leverage redevelopment opportunities,
and to help preserve green space, offering combined benefits to local communities.
OECA can facilitate reuse by clarifying liability at sites of federal interest (or for
communities particularly impacted by the economic downturn), when perceived liability
remains an obstacle and EPA involvement is critical. Brownfields are described in more
detail in the Goal 3 NPM Guidance published by OSWER.
Cleaning Up Our Communities: In an effort to improve the accountability, transparency,
and effectiveness of EPA's cleanup programs, EPA initiated a multiyear effort in 2010 to
better use assessment and cleanup authorities to address a greater number of sites,
accelerate cleanups, and put those sites back into productive use while protecting human
health and the environment. By bringing to bear the relevant tools available in each of
the cleanup programs, including enforcement, EPA will better leverage the resources
available to address needs at individual sites.
2. Aggressively Go After Pollution Problems That Make a Difference in Communities
EPA's CERCLA Enforcement program protects communities by requiring responsible parties to
conduct cleanups, preserving federal dollars for sites where there are no viable contributing
parties. Superfund enforcement ensures prompt site cleanup and uses an "enforcement first"
approach that maximizes the participation of liable and viable parties in performing and paying
for cleanups. EPA negotiates cleanup agreements with potentially responsible parties at
hazardous waste sites and, where negotiations fail, either takes enforcement actions to require
cleanup or expends Superfund appropriated dollars to clean up the sites. In some cases, EPA
takes both actions. When EPA uses appropriated dollars, it takes action against any viable
responsible parties to recover cleanup costs. Aggressively pursuing responsible parties to clean
up sites ultimately reduces direct human exposure to hazardous pollutants and contaminants,
provides for long-term human health protections and makes contaminated properties available
for reuse.
As part of the Integrated Cleanup Initiative (1C I), OECA will take early and focused enforcement
efforts to compel cleanup. Those efforts include increasing enforcement earlier in the pipeline at
non-emergency removal action and remedial investigations/feasibility study (RI/FS) stages;
expediting remedial action by holding parties accountable to negotiation timeframes and
scheduled cleanup commitments; and rejuvenating the process for early identification of
FY2012 OECA NPM Guidance Page 66
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responsible parties to support increased site assessment, national priorities (NPL) listings, and
early enforcement activities.
Under the ICI, OECA is reaffirming its commitment to "enforcement first" in all aspects of the
Superfund program (i.e., removals, remedial, long-term stewardship, etc.). Regions should
continue to focus on activities that maximize PRP involvement at Superfund sites.
EPA's Superfund enforcement GPRA goals and performance expectations for FY 2012 are:
COMMITMENT OSRE-01: Reach a settlement or take an enforcement action by the start of
remedial action at 99% of non-federal Superfund sites that have viable, liable parties.
COMMITMENT OSRE-02: Address all unaddressed costs in Statute of Limitations cases for
sites with total past Superfund costs equal to or greater than $200,000 via settlement, referral to
DOJ, filing a claim in bankruptcy, or where appropriate write-off.
COMMITMENT HQ-VOL: Volume of Contaminated Media Addressed (VCMA): As part of
the Goal 5 sub-objective, Support Cleaning up Our Communities, OECA has added the
following new GPRA target:
By 2015, obtain commitments to clean up 1.5 billion cubic yards of contaminated soil and
groundwater media as a result of concluded CERCLA andRCRA corrective action enforcement
actions.
OECA has reported VCMA for contaminated soil and groundwater media as separate measures
in its annual results since 2004. The new measure combines the two and elevates them to the
GPRA level. The GPRA target is a national target and regions are not required to post
commitments in ACS.
In addition, the CERCLA enforcement program tracks many program-level measures. These
measures and their definitions can be found in the Superfund Program Implementation Manual
(SPEVI) at: http://epa.gov/superfund/action/process/spiml 1 .html.
OSWER's National Program Managers Guidance for FY2011 establishes priorities for EPA's
Federal Facilities Response program: conducting cleanup and response work at contaminated
sites and rendering formerly contaminated sites Ready for Reuse. EPA has Federal Facility
Agreements in place at almost all Federal facility NPL sites regarding the cleanups conducted by
the facilities and EPA's oversight of those cleanups. Those agreements lay out procedures for
resolving disputes. Regions are expected to use the procedures of the agreements, or other
applicable enforcement authorities (such as imminent and endangerment orders in applicable
circumstances), when Federal facilities are not complying with the terms of the agreements or
with other legal requirements. Additionally, Regions and headquarters offices should work
together to get remaining NPL sites as well as new NPL sites under agreements or other legally-
enforceable agreements.
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Environmental justice (EJ) is a priority for OECA's waste programs, promoting healthy and
environmentally sound conditions for all people. OECA will continue to integrate environmental
justice into its Site Remediation Enforcement program by:
Affirming its commitment to ensure that Regions and States use EJ criteria when
enforcing RCRA corrective action requirements to meet RCRA 2020 goals.
Affirming its commitment to ensure that institutional controls are implemented at sites in
environmental justice areas of concern.
Conducting an environmental justice review of new policy and guidance documents
before they become final.
3. Working With States, Tribes and Local Communities
EPA will be implementing its Community Engagement Initiative,
http://www.epa.gov/oswer/docs/cei action_plan 12-09.pdf designed to enhance headquarters
and regional program engagement with States, local communities and stakeholders to
meaningfully participate in government decisions on land cleanup, emergency response, and the
management of hazardous substances and waste. The initiative provides an opportunity for EPA
to refocus and renew its vision for community engagement, build on existing good practices, and
apply them consistently in EPA processes. Proactive, meaningful engagement with States, local
governments and communities will enable EPA to obtain better information about the
environmental problems and local situations - leading to more informed and effective policies
and decisions.
4. Improve Transparency
The Comprehensive Environmental Response Compensation and Liability Information System
(CERCLIS) is the main database for Superfund information. The public can request specific
reports by going to http://www.epa.gov/superfund/. In addition, Regions should continue to
provide site-specific fact sheets, which include enforcement information, on regional web pages.
Compliance data will distinguish State information from Indian country information. Information
should be made available to communities and Tribes, who lack access to the internet.
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SECTION VI: KEY PROGRAM PRIORITIES AND STRATEGIES TO ADDRESS
ENVIRONMENTAL PROBLEMS THROUGH CRIMINAL ENFORCEMENT
1. Criminal Enforcement Priorities
The criminal enforcement program will emphasize:
EPA's Enforcement Goals, National Enforcement Initiatives for FY 2012-13 and
Regional Enforcement Priorities
Focusing Enforcement through Case Tiering
Integrating Environmental Justice (EJ) into case selection and prosecutions
Case Tiering. During FY 2012, the criminal enforcement program will continue to implement
and refine its case "tiering" system to focus scarce investigative resources using criteria, data and
methodologies linked to OECA's goals. The objective is to focus enforcement efforts by
increasing the percentage of Tier 1 and Tier 2 cases, which became a GPRA measure beginning
in FY 2011.
The case tiering methodology prioritizes cases based on four categories of information:
1) Human health and environmental impacts (e.g., death or serious injury),
2) The nature of the pollutant and the release, (e.g., toxic pollutant, continuing violation)
3) Subject characteristics (e.g., national corporations, repeat violators), and
4) Unique Case Factors (e.g., collaborative efforts with law enforcement partners)
Based on these factors, all cases are "tiered" with Tier 1 cases being the most important. The tier
designation is used throughout the investigative process including the opening of leads, case
selection and prosecution and direction of resources for case support. (Note: a case's tier
classification may change as cases are investigated and additional information uncovered).
Environmental Justice: One of the main duties of EPA's criminal enforcement program is to
serve and protect the most vulnerable communities by using law enforcement tools to protect
their health and local environment. EJ is a critical concept in meeting that objective. Criminal
enforcement will increase its use of the Agency's environmental justice tools and methodology
to help identify critical criminal cases that disproportionately impact vulnerable communities.
This includes continuing efforts to work with tribal law enforcement to strengthen the
effectiveness of environmental enforcement in Indian country. The program will also continue to
work with Agency EJ workgroups and partnerships to integrate and focus EJ efforts.
1. Link with Critical Program Office Priorities
EPA's enforcement program relies on the criminal and civil programs working closely together
both at the strategic and case-specific levels to bring to bear the most appropriate enforcement
tools to protect human health and the environment in each media area.
FY2012 OECA NPM Guidance Page 69
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At the national level, the criminal enforcement program will continue working with civil
partners in annual planning efforts and will work together to develop systems to track, encourage
and reward effective cooperation. Efforts will include assessing existing information available in
both criminal and civil programs and evaluating regional cooperative efforts to date. Each
program will adhere to OECA's parallel proceedings policy when both civil and criminal
violations are present in an individual case, and will ensure all civil and criminal staff are trained
on parallel proceedings.
At the Regional level, the enforcement offices will work with the Special Agents In Charge
(SACs) to continue and strengthen joint case screening, share salient information and plan how
to address violations using the most appropriate administrative, civil or criminal enforcement
tools.
2. Strengthen Relationships with Law Enforcement Partners That Support State
Environmental Crimes Investigations and Prosecutions
The criminal enforcement program will work with the States, Regions, Tribal governments, and
other law enforcement organizations as appropriate to:
Help these organizations build capacity to pursue environmental crime and provide
investigative support to state-lead prosecutions where appropriate.
Provide targeted training to State, tribal and law enforcement partners to enhance their
abilities to safely spot, report and address environmental violations.
Continue international enforcement efforts, e.g., working with INTERPOL to combat the
illegal transnational shipment and disposal of electronic waste (e-waste), work with
Canadian authorities in efforts in the Great Lakes.
3. Improve Transparency
The criminal enforcement program will:
Publicize EPA's criminal enforcement efforts and successes to deter other potential
violators.
Continue to develop its use of new outreach methods such as Facebook, twitter and
mobile applications to encourage the public's reporting of potential violations and to
provide leads through the fugitives web site.
Ensure that the public can continue to find information it needs about EPA's criminal
enforcement efforts, including the Summary of Criminal Prosecutions, the mobile
application of the Report a Violation Website and the EnviroCrimes Mapper.
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SECTION VII: KEY PROGRAM PRIORITIES AND STRATEGIES TO ADDRESS
ENVIRONMENTAL PROBLEMS THROUGH THE NATIONAL ENVIRONMENTAL
POLICY ACT
A. Specific Federal Activities Program Performance Expectations
Federal activity compliance work focuses on three areas: fostering compliance and pollution
prevention through international cooperation; assisting other federal agencies in making
environmentally sound decisions which include early public involvement and transparency by
complying with the National Environmental Policy Act (NEPA); and guiding EPA's own
compliance with NEPA and applicable statutes and Executive Orders. This work implements
two of OECA's FY 2012 goals by addressing pollution that matters most to communities and
promoting transparency.
Regions should work to assure international compliance and prevent illegal trans-boundary
movement of hazardous waste by:
Improving environmental performance and cooperation in accordance with Goal 6 of the
U.S./Mexico Border 2012 plan (Regions VI and IX).
Enhancing enforcement, compliance, and capacity building efforts with Mexico and Canada
relating to trans-boundary compliance monitoring on the U.S. borders for hazardous waste,
CFCs, selected chemicals (e.g., PCBs, mercury), and other regulated substances (Border
Regions).
Improving performance of joint responsibilities along the border and ports of entry into the
United States by working with the Bureau of Customs and Border Protection (CBP) through
appropriate contact channels (all Regions).
Promoting international environmental enforcement through participation in relevant
organizations and networks, such as the Enforcement Working Group of the North American
Commission for Environmental Cooperation (CEC) and the International Network for
Environmental Compliance and Enforcement (INECE), and, in particular, its Seaport
Environmental Security Network (regional participation as appropriate, based on subject
matter).
Reviewing the permit and compliance status of U.S. receiving facilities in connection with
100% of the notifications for the import of hazardous waste they receive from HQ EPA and,
based on the review, recommending consent or objection to notifications within the time
periods allowed under applicable international agreements (all Regions).
As a regular part of Regional inspection activities, conducting periodic inspections of U.S.
facilities which receive imported hazardous waste (TSDFs) and generators and other primary
exporters of hazardous waste, cathode ray tubes (CRTs) and spent lead acid batteries
(SLABs), based on information provided by OFA which identifies those facilities
participating in import and export shipments.
Regions should implement the National Environmental Policy Act (NEPA) by:
Fulfilling EPA's obligations under NEPA, Section 309 of the Clean Air Act, and cross-
cutting laws, directives, and Executive Orders (e.g., Endangered Species Act, National
Historic Preservation Act, Executive Order on Environmental Justice, Wetlands and Flood
FY2012 OECA NPM Guidance Page 71
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Plains Protection) by reviewing and commenting on all major proposed federal actions to
ensure identification, elimination, or mitigation of significant adverse effects, and making the
comments available to the public.
Ensuring that projects likely to have significant impacts (e.g., transportation, mountaintop
mining, and energy) receive sound environmental analysis, use cooperation among agencies
to resolve differences, consider environmental justice, incorporate innovation and support
public involvement through a more streamlined and transparent environmental review
process
Ensuring that at least 90 percent of EPA projects subject to NEPA environmental assessment
or EIS requirements (e.g., water treatment facility projects and other grants, new source
NPDES permits and EPA facilities) are expected to result in no significant environmental
impact.
Ensuring that 70 percent of significant impacts identified by EPA during the NEPA review
of all major proposed federal actions will be mitigated. (GPRA measure)
Promoting Environmental Justice considerations throughout the environmental decision-
making process and encouraging public involvement early in the process to maximize
transparency.
Working towards the goals laid out in EJ 2014, particularly the commitments regarding
cross-Agency coordination to meet the challenges of the Executive Order.
Fostering cooperation and collaboration with other Federal agencies and
Tribes to ensure compliance with applicable environmental statutes; promoting better
integration of pollution prevention measures and ecological risk assessment; and providing
technical assistance in developing projects that prevent adverse environmental impacts to the
Nation's land, water and air.
Making categorical exclusion determinations or preparing environmental analyses (EISs or
EAsj and posting them on the internet for EPA- issued National Pollutant Discharge
Elimination System (NPDES) permits for new sources, for states/tribes without authorized
NPDES programs; off-shore oil and gas sources, including permits for deepwater ports, EPA
laboratories and facilities; and Clean Water Act wastewater treatment plant grants.
Making Categorical Exclusion determinations or preparing environmental analyses (EAs or
EISs) and posting them on the internet for Special Appropriation grants (including the
Colonias Wastewater Construction and Project Development Assistance program) for
wastewater, drinking water supply, and solid waste collection facilities; Border Environment
Infrastructure Funds (for the US/Mexico Border Environment Cooperation Commission
projects); and reviews conducted under "EPA's Voluntary NEPA Compliance Policy."
Entering the results of their ' 309 reviews and NEPA compliance actions into the Lotus
Notes EIS Tracking Database maintained by HQ OF A, and the Special Appropriations Act
Projects (SAAP) system maintained by HQ OW, respectively. Additionally, Regions should
report to the Office of Federal Activities quarterly on the status of their 309 reviews and
NEPA compliance actions pursuant to the Government Performance Reporting Act (GPRA)
reporting process, and provide other reports as may be required by the American Recovery
and Reinvestment Act of 2009.
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SECTION VIII: NATIONAL PROGRAM REQUIREMENTS FOR ADDITIONAL OECA
PROGRAMS UNDER GOAL 5
In addition to the national initiatives and programs that can be specifically assigned to one of the
four Strategic sub-objectives of water, air, waste/toxic/pesticides, and criminal enforcement,
OECA has several programs that contribute to the goals of more than one sub-objective. These
programs are: Multi-media, Compliance Incentives, Indian country, and Emergency Planning
and Community Right to Know Act (EPCRA). In addition, OECA has specific training and state
oversight program requirements.
A. Specific Emergency Planning and Community Right to Know Act (EPCRA) Program
Performance Expectations
EPCRA includes two distinct programs, Community Right-to-Know under EPCRA 313 and
release notification and emergency preparedness under CERCLA 103 and EPCRA 304, 311 and
312. EPA and the public rely on EPCRA for information on chemical releases entering the
environment, and on the storage of chemicals at facilities. EPA, States, Tribes, local entities, and
communities rely on the combined EPCRA/CERCLA information to prepare local chemical
emergency response plans, and to more safely and adequately respond to chemical emergencies.
EPA must ensure that companies report accurately and within required time frames. Although
there is no target for assistance activities, assistance is an appropriate tool, in particular, for
smaller entities who meet the reporting criteria. Regions and States should inspect facilities that
may be contributing to pollution problems that matter to their respective communities, and
develop enforcement cases that produce significant environmental benefits.
1. Link with Top Office of Environmental Information Priorities
OECA addresses the top Office of Environmental Information priority for the EPCRA programs
by increasing compliance of non-reporters.
2. Aggressively Go After Pollution Problems That Make a Difference in Communities
A. EPCRA 313:
Regions are expected to:
o Inspect or send information request letters to enforcement targets developed by
OECA with assistance from OEI for FY 2012 to address the following categories of
concern as resources allow.
o Potential non-reporters (facilities that report in one year but fail to report the
following year).
o Potential never-reporters (target facilities in the same sectors where a company may
not have reported and a similar facility in the sector did report);
o Potential data quality issues (facilities with significant changes in release estimates
from one year to the next or facilities in the same sector where a facility reports
significantly more/less than a similar facility in the sector).
FY2012 OECA NPM Guidance Page 73
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o Facilities that submit a Form A after having previously submitted a Form R, and
concerns exist as to the accuracy of this change.
o The submission of forms with errors significant enough to prevent the input of data
into the Toxic Release Inventory.
Track and prioritize tips and complaints and follow-up, as needed. OECA may provide
additional targeting as part of an initiative focused on communities, chemicals or sectors
of concern.
Any inspections resulting from any of these targeting efforts will count towards the
Region's overall inspection commitments.
In addition, Regions should:
Work with the Air, RCRA and Water compliance and enforcement programs to add EPCRA
questions to information requests where appropriate, evaluate the responses, and take
appropriate enforcement actions or combine with other enforcement actions.
Review and follow-up on, as appropriate, disclosures submitted under the OECA Audit
Policy and Small Business Policy.
OECA will assist in targeting inspections, but the Regions are expected to provide legal
and technical enforcement case support, and either obtain additional information through
federal investigation, show cause letter, subpoena and issue appropriate federal actions as
appropriate; or determine that follow-up is not necessary.
COMMITMENT EPCRA 01: Conduct at least four (4) EPCRA 313 data quality inspections.
COMMITMENT EPCRA 02: Conduct at least twenty (20) EPCRA 313 non-reporter
inspections.
B. EPCRA 304/311/312 CERCLA 103
Regions should:
Use screening and targeting tools to focus limited federal resources on national and
regional priority areas. In targeting for inspections, Regions should consider the presence
of significant quantities of CERCLA hazardous or EPCRA extremely hazardous
chemicals, proximity to population centers, a history of significant accidental releases,
and any other information that indicates a facility may be high-risk.
Evaluate compliance with EPCRA sections 304, 311, and 31 and CERCLA section 103
during CAA section 112(r) high-risk facility inspections (as described in the CAA
Section of this guidance).
Within a reasonable period of time, evaluate and respond, if appropriate (including taking
enforcement action where appropriate) to any tip or complaint containing allegations that
provide a reasonable basis to believe that a violation has occurred.
FY2012 OECA NPM Guidance Page 74
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Evaluate certain continuous release submissions for accuracy and compliance and take
appropriate enforcement actions for non-compliance.
3. Reset Our Relationships with States
The Regions should continue coordinating with States and Tribes.
4. Improve Transparency
The Regions should
Enter all federal enforcement cases into national databases.
Enter all federal civil judicial consent decrees into ICIS.
5. Relevant Policies and Guidances
Additional information about OECA's EPCRA programs can be found at:
http://www.epa.gov/compliance/monitoring/programs/epcra/index.html
http://www.epa.gov/compliance/civil/epcra/index.html
http://www.epa.gov/compliance/monitoring/programs/epcra.html
B. Compliance Incentives Program Performance Expectations
In addition to providing compliance assistance and taking enforcement actions, EPA promotes
compliance through the use of the following incentive policies: (1) the policy on "Incentives for
Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations" (the Audit
Policy); (2) "Small Business Compliance Policy" (Small Business Policy); and (3) "Small Local
Governments Compliance Assistance Policy" (Small Local Governments Policy). These policies
reduce or waive penalties under certain conditions for facilities which voluntarily discover,
promptly disclose, and correct environmental problems. EPA encourages the use of these
policies, particularly when use results in actions that reduce, treat, or eliminate pollution in the
environment or improve facility environmental management practices (EMPs).
In most quarters, EPA receives slightly more self-disclosures than are recorded as resolved.
Over time, this has led to an increasing inventory of unresolved disclosures. In recognition that
we need to address this inventory, the Audit Policy Coordination Team (ACT), comprised of
representatives from all ten Regions and Headquarters has developed a number of practice
modifications, which should reduce transaction costs, streamline and speed up the processing of
disclosures. In FY 2011, the Office of Civil Enforcement will continue to work with the Regions
and Headquarters offices to expedite the processing and resolution of voluntary disclosures. In
FY 2012, the Regions and Headquarters are expected to continue to expeditiously process
voluntary disclosures in order to prevent the increase of the pipeline, as well as to reduce the
inventory.
1. Aggressively Go After Pollution Problems That Make a Difference in Communities
EPA's Audit Policy, Small Business Policy and Small Local Governments Policy provide
incentives for regulated entities to resolve environmental problems and come into compliance
with federal laws through self-assessment, disclosure, and correction of violations. EPA is
FY2012 OECA NPM Guidance Page 75
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encouraging audits and disclosures that achieve significant environmental outcomes, as well as
ways to improve Audit Policy implementation.
Under various Compliance Incentive Programs (CIPs), individual entities or members of a sector
disclose and correct violations in exchange for reduced or waived penalties, while the risk of
enforcement increases for those not taking advantage of this opportunity. Regions in
consultation with Headquarters are expected to consider the use of CIPs directed at particular
sectors and/or noncompliance problems, particularly key program priorities, with emphasis on
violations that impact areas with environmental justice concerns, and violations that, once
corrected, are likely to result in measurable pollution reductions.
2. Reset Our Relationships with States
Regions are expected to implement EPA's compliance incentive policies
(http://www.epa.gov/compliance/resources/policies/incentives), with the assistance of State,
tribal, and local agencies, to encourage the regulated community to voluntarily discover,
disclose, and correct violations before regulatory agencies identify entities for enforcement
investigation or response.
3. Improve Transparency
EPA will continue to enter data into ICIS regarding the receipt and resolution of self-disclosures
and, at the end of FY2012, EPA will continue to report on the number of self-disclosures
received and resolved together with the environmental outcomes resulting from disclosing
entities correcting their violations.
C. Federal Facilities Enforcement Program Performance Expectations
EPA's compliance and enforcement program involves more than 30,000 federal facilities and
installations spread across nearly 30% of the nation's territory, among which are some 10,000
currently regulated under the Agency's various statutes. As such, it is one of the EPA's largest
and most diverse sectors to oversee. Given limited resources, the primary focus in this sector has
been on monitoring and enforcement, given stewardship opportunities and reliable compliance
assistance offered by others, including at FedCenter, the sector's on-line environmental
stewardship and compliance assistance center sponsored by more than a dozen federal agencies.
Further, while these federal installations are sometimes subject to special provisions of
environmental law, EPA's general practice and policy is to hold them to the same standard of
compliance as private facilities. EPA's federal facilities enforcement and compliance programs
are at http://www.epa.gov/enforcement/federalfacilities/index.html
FFEO, in partnership with other federal agencies, will operate and expand FedCenter as the
central point for federal agency collaboration on greenhouse gas emission response and
compliance with new Executive Order 13514 on federal sustainability.
See http://www.fedcenter.gov/
In an effort to effectively focus limited resources, FFEO and the Regional Federal Facilities
Managers annually negotiate Integrated Strategies as part of the National Federal Facilities
FY2012 OECA NPM Guidance Page 76
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Program Agenda. These integrated strategies align enforcement, compliance, and stewardship
activities and help achieve environmental and health benefits by addressing those problems that
matter to communities. In FY 2012, Regions are expected to continue to implement Integrated
Strategies dealing with storm water, federal underground storage tanks, RCRA corrective action
sites. FFEO and the regions have also identified three exploratory integrated strategy areas for
FY 2012. These new areas focus on enforcement actions at Government Owned/Contractor
Operated/Government Owned/Privately Operated (GOCO/GOPO) facilities, HCFCs/CFCs
enforcement and an energy extraction enforcement initiative which compliments a new national
OECA-wide initiative. In addition, FFEO will complete new inspection targeting capabilities for
vulnerable communities and consider potential new inspection activities associated with the
recently announced initiative dealing with disposal of unneeded federal real estate.
1. Aggressively Go After Pollution Problems That Make a Difference in Communities
Clean water action plan: Regions are expected to continue implementing the Integrated
Strategies on stormwater and underground storage tanks. To support Regions in Assuring clean
drinking water, especially on tribal lands, FFEO will research drinking water pollution and
potential SDWA enforcement particularly at formerly used defense sites (FUDS). Regions and
FFEO are expected to continue to implement an enforcement action against Bureau of Indian
Affairs for violations at schools on BIA and tribal lands. In addition, FFEO will complete new
inspection targeting capabilities for vulnerable communities.
Clean air: To reduce air pollution from largest sources and to support the Regions, FFEO will
complete new research on power plants operating on military bases.
Climate and clean energy: FFEO, in partnership with other federal agencies, will operate and
expand FedCenter as the central point for federal agency collaboration on greenhouse gas
emission response and compliance with new Executive Order 13514 on federal sustainability.
See
In order to protect people from exposure to hazardous chemicals, Regions are expected to sustain
a vigorous inspection and enforcement program at federal facilities. Regions and FFEO are
expected to implement the Integrated Strategy on protecting vulnerable populations.
FFEO will continue research into non-compliance at surface impoundment sites, RCRA
corrective action sites and other RCRA non-TSDF facilities. FFEO will complete new research
on greater compliance/enforcement activity at FUDS. In order to reduce risks from mineral
processing, Regions are expected to address contamination and cleanup at federal abandoned
mine sites. In an effort to reform chemical management enforcement, Regions are expected to
address issues with PCBs in ships and asbestos and pesticides at military sites. FFEO will work
to secure penalty authority against federal facilities through TSCA reauthorization. In addition,
FFEO and Regions are expected to continue implementing the Integrated Strategy on federal
prisons.
FFEO strongly encourages the Regions to take enforcement actions to improve compliance at
federal facilities. For FY 2012, federal facility resources should give first priority to taking
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appropriate and timely enforcement actions, as defined within relevant media-specific policies,
for each federal facility inspected as a consequence of Federal Facility Integrated Strategies
efforts. Where appropriate, FFEO advocates including environmental management system
(EMS) improvements and SEPs as part of enforcement action settlements. FFEO also urges the
Regions to take timely and appropriate enforcement actions to address violations of clean up
responsibilities.
Enforcement Follow Up and Projections
At mid-year each Region must project the number of formal (1) federal facility enforcement case
initiations and (2) federal facility settlements for FY 2012. The projections should not include
Records of Decision at federal facility CERCLA sites. Projections can include issuance of
Notices of Determinations regarding self-disclosures by federal facilities. The projections should
be emailed by the Regional Enforcement Division Director to the Director of OECA's Federal
Facility Office at the end of the 2nd fiscal quarter. Since these projections are outside the ACS
system, they are not commitments by the Regions.
Please note the reference at Section V.D on page 61 of this Guidance to OSWER's NPMG which
establishes priorities for EPA's Federal Facilities CERCLA Enforcement program. Clean up at
hazardous sites: Regions and FFEO are expected to work to ensure timely completion of
CERCLA Federal Facility Agreements (FFA). Regions are expected to oversee compliance by
federal agencies under FFAs. Those agreements lay out procedures for resolving disputes.
Regions are expected to use the procedures of the agreements, or other applicable enforcement
authorities (such as imminent and endangerment orders in applicable circumstances), when
Federal facilities are not complying with the terms of the agreements or with other legal
requirements. Additionally, Regions and headquarters offices will work together to get
remaining NPL sites as well as new NPL sites under agreements or other legally-enforceable
agreements.
All federal facility enforcement actions are considered nationally significant and require
consultation with FFEO. FFEO will focus its resources to make these consultations timely and
effective.
Regions are encouraged to target federal facilities as part of National Enforcement Initiative
areas, as well as Regional priorities, national initiatives targeted at geographic areas, EJ areas
and federal facilities Integrated Strategies areas. Under Sections III, IV, and V of this Guidance,
each Region must report the number of federal facilities evaluations, investigations and
inspections included within commitments under the various Regional media program
commitments.
COMMITMENT FED-FAC05: Each Region must conduct ten (10) federal facilities
inspections to support integrated strategy areas, which include stormwater; federal underground
storage tanks, federal prisons; RCRA surface impoundments, RCRA corrective action sites, and
vulnerable populations. These inspections can be achieved through any combination of single
media or multimedia inspections with the following limitations: (1) a maximum of three UST
inspections can count toward this goal and (2) a maximum of three (3) vulnerable community
FY2012 OECA NPM Guidance Page 78
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inspections can count toward this goal, and (3) for any multimedia inspection conducted, it shall
count as two inspections toward this goal if two of the individual inspections support the
Integrated Strategies. These inspections may simultaneously satisfy inspections commitments
required in National Enforcement Initiative or other core program areas.
2. Reset Our Relationships with States
Regions are expected to hold States accountable for responsible federal facility compliance
monitoring and enforcement activity.
3. Improve Transparency
Regions are expected to share environmental information appropriately with the public for
federal facility environmental violations, including through press releases for all enforcement
actions, and at federal facility cleanup sites. EPA will pursue legislative changes to ensure
federal agency environmental accountability under federal laws.
D. State Review Framework (SRF) Expectations
In FY 2012, Regions are asked to support the SRF in the following ways:
Conduct Round 3 SRF reviews on state CAA, CWA, and RCRA enforcement programs,
completing in FY2012 all states that did not receive a review in Round 2, and including 1
pilot state review using an integrated permit and enforcement review process in the 2nd
half of FY2012. Ensure that commitments to implement significant recommendations for
program improvements are captured in appropriate negotiated PPAs, PPGs, or categorical
grant agreements between the Region and the State, with accountability for carrying out
those commitments. SRF review results should be integrated with, and viewed and
discussed with the State in coordination with permit reviews.
Regions should use all available data to benchmark and monitor the enforcement
performance of their States. Data sources include (but are not limited to) federal and
state data systems, permitting and enforcement performance reviews, and other audit or
evaluation reports.
Enter both draft and final SRF reports, which include Preliminary Data Analyses, file
reviews, recommendations, state comments, and benefits arising from Framework
reviews, into the Lotus Notes SRF Tracker database upon completion of a SRF review.
Monitor the progress of States and Tribes in carrying out the recommendations of rounds
1 and 2 of the SRF, and record the progress quarterly in the Lotus Notes SRF Tracker
database.
Use results of reviews to inform annual planning and regular progress meetings with
States. Where progress resolving SRF recommendations are not being made, Regions
should escalate their responses to state performance issues.
COMMITMENT SRF01: Develop a schedule of state reviews for the four years of Round 3
(2012-2016), completing all remaining states from Round 2 in 2012. Included in this 2012 work
is conducting for one state, an integrated permit and enforcement review process. Identify the
FY2012 OECA NPM Guidance Page 79
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number of Round 3 reviews to be conducted, consistent with SRF guidance in FY2012, by year
and by state. Where appropriate, program improvements should be captured in appropriate
negotiated PPAs, PPGs, or categorical grant agreements between the Region and the State, with
accountability for carrying out those commitments. Information on SRF reviews, along with the
recommendations, is to be entered into the SRF Tracker.
SRF guidances, policies, and templates for reporting are found at http://www.epa-
otis.gov/srf/srf tracking.html.
FY2012 OECA NPM Guidance Page 80
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SECTION IX. FY2012 OECA WORKPLAN SUBMISSION INSTRUCTIONS
A. Annual Commitment System
Following the release of the final OECA NPM Guidance, Regions should hold discussions with
States and Tribes to discuss the highest priority work across the Region ands States for the
upcoming year. This work should be an integration of national, regional and state priorities, and
consider permitting and enforcement activities that will lead to improvements in compliance and
in environmental conditions. The Regions and States should discuss how to work together to
ensure that the highest priority work gets done, including consideration of this NPM Guidance,
along with guidance of other EPA programs.
Regions and States should develop draft numbers for the commitments contained in the guidance
that relate to state and tribal activities. Regions should also assess their own resource levels in
relation to the priority work identified in the regional/state discussions and the state and tribal
contributions to that work, and the work outlined in the NPM Guidance.
OECA will hold a planning discussion with each Region at the senior management level during
the spring of 2011 to discuss the strategic allocation of the Region's resources, with the goal of
informing the negotiation of the ACS commitments for the Region for the coming year. OECA
understands that the demands of ensuring compliance with the myriad of environmental laws and
programs covered by this NPM Guidance may exceed a Region's resources, and wants to ensure
that available resources are put towards addressing the most important sources and most serious
violations that affect the environment and public health.
Current schedules call for Regions to enter their draft targets into the annual commitment system
by July 9, 2011. By completing OECA and regional senior management discussions prior to this
time, the process for resolving any issues and finalizing annual regional targets should be
streamlined. During this same time, Regions should engage States and Tribes in negotiations to
complete the grant process (PPAs, PPGs, and Categorical Grants), including translating regional
targets into formal commitments supported by state-by-state agreements. All commitments
should be final by October 22, 2011.
B. FTE Resource Charts
The Regions should complete FTE charts similar to the charts completed in previous planning
cycles. Charts organize FTE information by goal, objective, and sub-objective, and then cross-
walk to the media program elements. The importance of the FTE Resource Charts is significant
due to increased interest from the Office of Management and Budget, the Inspector General, and
Congress. Regions will receive FTE templates in August 2011. It is imperative that Regions
complete these charts and submit these documents to Christopher Knopes and Lisa Raymer on
September 3 0,2011.
2011 Final - Enter the Region's final FTE allocation for FY2011 in the 2011 Final
column.
FY2012 OECA NPM Guidance Page 81
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2012 Proposed - Enter the Region's proposed FTE allocation for FY2011 in the 2012
Proposed column. Headquarters recognizes that FTE levels may change after the Agency
receives the FY2011 enacted budget after October 1, 2012. Therefore this number is a
"best guess" estimate.
FY2012 OECA NPM Guidance Page 82
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SECTION X. LIST OF ACRONYMS
A
ACS - Annual Commitment System
AHERA - Asbestos Hazard and Emergency Response Act
AFS - Air Facilities System
AFS ICR - Air Facilities System - Information Collection Request
AST - Above Ground Storage Tank
ASDWA - Association of State Drinking Water Administrators
B
BIA - Bureau of Indian Affairs
BMP - Best Management Practices
BoP - Bureau of Prisons
C
CA - Compliance Assistance
CAA - Clean Air Act
CAC - Compliance Assistance Coordinator
CACDS - Compliance Assistance Conclusion Data Sheet
CAFO - Concentrated Animal Feeding Operations
CBP - Customs and Border Protection
CBI - Confidential Business Information
CCDS - Case Conclusion Data Sheet
CDC - Centers for Disease Control
CEC - Commission for Environmental Cooperation
CEI - Compliance Evaluation Inspection
CERCLA - Comprehensive Environmental Response, Compensation and
Liability Act
CESQG - Conditionally-exempt Small Quantity Generator
CFC - Chlorofluorocarbon
CID - Criminal Investigation Division
CIPs - Compliance Incentive Programs
CMS - Compliance Monitoring Strategy
CRT - Cathode Ray Tubes
CSOs - Combined Sewer Overflows
CSS - Combined Sewer Systems
CWA-Clean Water Act
D
DARTER - Data on Aquatic Resource Tracking for Effective Regulation
FY2012 OECA NPM Guidance Page 83
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DMR - Discharge Monitoring Report
DOH - Department of Homeland Security
DOJ - Department of Justice
E
EA - Environmental Assessment
EIS - Environmental Impact Statement
EJ - Environmental Justice
EJAC - Environmental Justice Areas of Concern
EJSEAT - Environmental Justice Strategic Enforcement Assessment Tool
EBLLs - Elevated Blood Lead Levels
EMP - Environmental Management Practices
EMR - Environmental Management Reviews
EMS - Environmental Management System
EPA - Environmental Protection Agency
EPCRA - Emergency Planning and Community Right to Know Act
ERPs - Enforcement Response Policies
ERP - Environmental Results Program
ESD - Explanations of Significant Differences
ETT - Enforcement Targeting Tool
F
FCE - Full Compliance Evaluation
FEMA - Federal Emergency Management Agency
FFA - Federal Facility Agreement
FFEO - Federal Facilities Enforcement Office
FIFRA - Federal Insecticide Fungicide and Rodenticide Act
FTE - Full Time Equivalent
FTTS/NCDB - FIFRA-TSCA Tracking System/National Compliance
Database
FRP - Facility Response Plan
FRV - Federally Reportable Violations
FUDS - Formerly Used Defense Sites
FY-Fiscal Year
G
GACT - Generally Available Control Technology
GAO - Government Accounting Office
GHG - Greenhouse Gas
GIS - Geographic Information System
GME - Groundwater Monitoring Evaluation
GOCO -Government Owned/ Contractor Operated
FY2012 OECA NPM Guidance Page 84
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GOPO - Government Owned/Privately Operated
GPRA - Government Performance and Results Act
H
HAP - Hazardous Air Pollutant
HCFC - Hydrochlofluorocarbons
HPV - High Priority Violators
HPPG - High Priority Performance Goal
HQ - Headquarters
HUD - Housing and Urban Development
I
IAC - Innovative Action Council
ICDS - Inspection Conclusion Data Sheet
ICI - Integrated Cleanup Initiative
ICIS - Integrated Compliance Information System
ICIS - NPDES Integrated Compliance Information System - National
Pollutant Discharge Elimination System
ICR - Information Collection Request
IG - Inspector General
INECE - International Network for Environmental Compliance and
Enforcement
IU - Industrial Users
IPOD - ICIS Policy on Demand
L
LBP - Lead-based Paint
LDAR - Leak Detection and Repair
LEA - Local Education Authority
LGEAN - Local Government Environmental Assistance Network
LQG - Large Quantity Generator
LVE - Low Volume Exemptions
M
MACT - Maximum Achievable Control Technology
MDR - Minimum Data Requirements
MITC - Methyl Isothiocyanate
MO A - Memorandum of Agreement
MOU - Memorandum of Understanding
MS4 - Municipal Separate Storm Sewer System
MSGP - Multi-sector General Permit
FY2012 OECA NPM Guidance Page 85
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N
NAAQS - National Ambient Air Quality Standards
NEI - National Enforcement Initiative
NEIC - National Enforcement Investigations Center
NEJAC - National Environmental Justice Advisory Council
NEPA - National Environmental Policy Act
NESCA - National Enforcement Strategy for Corrective Action
NESHAP - National Emissions Standards for Hazardous Air Pollutants
NETI - National Enforcement Training Institute
NOA - Notice of Arrival
NOV - Notice of Violation
NOx - Nitrogen Oxide
NPDES -National Pollutant Discharge Elimination System
NPL - National Priorities List
NPM - National Program Manager
NRC - National Response Center
NRCS - Natural Resource Conservation Services
NSPS - New Source Performance Standards
NSR - New Source Review
NTP - National Training Plan
O
OAM - Operation and Maintenance
OAP - Office of Administration and Policy
OC - Office of Compliance
OCE - Office of Civil Enforcement
OCEFT - Office of Criminal Enforcement, Forensics and Training
OCFO - Office of Chief Financial Officer
OCIR - Office of Congressional and Intergovernmental Relations
OCSPP - Office of Chemical Safety, Pesticides, and Prevention
ODS - Ozone Depleting Substances
OECA- Office of Compliance and Assurance
OEI - Office of Environmental Information
OEJ - Office of Environmental Justice
OF A - Office of Federal Activities
OGD - Office of Grants and Disbarment
OIG - Office of the Inspector General
OMB - Office of Management and Budget
OPA - Oil Pollution Act
OPP - Office of Pesticide Programs
OSHA - Occupational Safety and Health Administration
OSWER - Office of Solid Waste and Emergency Response
OTIS - Online Tracking Information System
FY2012 OECA NPM Guidance Page 86
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p
PBT - Persistent Bio-accumulative Toxics
PCB - Polychlorinated Biphenyls
PCE - Partial Compliance Evaluation
PCS - Permit Compliance System
PEI - Production Establishment Inspections
PFA - Preliminary Financial Assessments
PM10 - Particulate Matter
PMN - Pre-manufacturing Notice
POTW - Publically Operated Treatment Works
PPA - Performance Partnership Agreement
PPG - Performance Partnership Grants
PRE - Pre-renovation Education
PRP - Potentially Responsible Party
PSD - Prevention of Significant Deterioration
PWS - Public Water System
PWSS - Public Water System Supervision
R
RCRA - Resource Conservation Recovery Act
RCRAInfo - Resource Conservation and Recovery Act Information
RECAP - Regional Enforcement and Compliance Assurance Program
RED - Re-registration Eligibility Decision
RI/FS - Remedial Investigations/Feasibility Study
RMP - Risk Management Plan
ROD - Record of Decision
RR+P - Renovation, Repair and Painting
S
SAAP - Special Appropriations Act Projects
SAC - Special Agent-in-Charge
SCAP - Superfund Comprehensive Accomplishment Planning
SDWA - Safe Drinking Water Act
SDWIS/ODS - Safe Drinking Water Information System/ Operational
Data System
SEC - Securities and Exchange Commission
SEE - Senior Environmental Employment
SEP - Supplemental Environmental Project
SIP - State Implementation Plan
SGTM - State Grant Template Measures
SITS - Strategy Implementation Teams
FY2012 OECA NPM Guidance Page 87
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SLAB - Spent Lead Acid Batteries
SLPD - Special Litigation and Projects Division
SNCs - Significant Noncompliance
SNURs - Significant New Use Rules
SOC - Significant Operational Compliance
SO2 - Sulfur Dioxide
SPCC - Spill Prevention Control and Countermeasures
SPEVI - Superfund Program Implementation Manual
SQG - Small Quantity Generator
SRF - State Review Framework
SSO - Sanitary Sewer Overflows
STAG - -State and Tribal Assistance Grant
SWPPP - Stormwater Pollution Prevention Plan
T
TRI - Toxic Release Inventory
TSCA - Toxic Substance Control Act
TSD - Treatment, Storage and Disposal
TSDF - Treatment, Storage and Disposal Facility
TSS - Total Suspended Solids
TVA - Tennessee Valley Authority
U
UIC - Underground Injection Control
UNICOR - trade name of Federal Prison Industries
USCBP - U.S. Customs and Border Protection
UST - Underground Storage Tank
V
VCMA - Volume of Contaminated Media Addressed
VOC - Volatile Organic Compounds
W
WCED - Waste and Chemical Enforcement Division
WPS - Worker Protection Standards
WW - Wet Weather
FY2012 OECA NPM Guidance Page 88
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FY 2012 Annual Commitment System (ACS) Attachment Template
ENVIRONMENTAL PROTECTION AGENCY
OECA
Opt Col
G
/
O
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5
5
5
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5
ACS
Code
TAA04
V^iVtaAJt
CAA06
TAA07
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CWA07
Measure Text
The number of compliance evaluations to be conducted by the regions at majors sources,
80% synthetic minors, and other sources (as appropriate). [Note: Region should break out
evaluation projections by source classification and by compliance monitoring category
(FCE, PCE, and Investigations). In the comment section, each region should also provide
the number of federal facility FCEs, PCEs and investigations. Projected investigations
under this commitment are those investigations initiated by the Regions for the air
enforcement program outside of the National Enforcement Initiatives, and identified by the
air program (e.g., MACT, NSPS).
Ensure that delegated state agencies implement their compliance and enforcement
programs in accordance with the CAA CMS and have negotiated facility -specific CMS
plans in place. The Regions are to provide the number of FCEs at majors and 80%
synthetic minors to be conducted by individual state/local agencies to demonstrate program
implementation consistent with CMS. However, if a delegated agency negotiates with a
Region an alternative CMS plan, this Commitment should reflect the alternative plan.
[Note: Break out evaluation projections (e.g., FCEs; PCEs included in alternative plan) by
source classification]. Prior to approving an alternative plan, Regions should consult with
the Office of Compliance (OC) and provide OC with information on how the state/local
agency compliance monitoring air resources will be redirected and the rationale for making
the change.
The Regions and delegated agencies should enter 100% of MDRs in AFS consistent with
Agency policies, including the 2010 FRY Clarification, and the AFS ICR. The reporting of
such complete, accurate, and timely data by delegated agencies should be reflected in
written, up-to-date agreements with the Regions. If the Region is responsible for entering
data for a delegated agency or Tribe, the Region should identify the delegated agency or
Tribe.
By December 3 1, 201 1, provide a specific NPDES Compliance Monitoring Strategy
Non-
Commi
tment
Indicat
or
(Y/N)
N
N
N
1 N
N
State
Perform
ance
Measure
(Y/N)
N
N
N
1 N
N
Planni
ng
Target
N
N
N
National
Target
(FY2011
Pres.
Bud)
N
N
1 N
N
N
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5
\J
5
5
5
5
5
5
TWA 09
\_^ TT .ii \jy
CWA10
SDWA02
k?A/ TT F\.\J A
RCRA01
RCRA01.
s
RCRA03
RCRA02
(CMS) plan for each State in the Region. The plan should provide universe information for
the CMS categories; sub-categories covered by the CMS and combined EPA and State
expected accomplishments for each category and subcategory. The plan should identify
trade-offs made among the categories utilizing the flexibility designed into the CMS policy
to target the most significant sources with potential to impact water quality. At end of year
provide for each State a numerical report on EPA and state inspection plan outputs, by
category and subcategory. To increase the transparency of NPDES inspection data, OECA
will work with Regions and State associations to develop formats for releasing inspection
data on CMS implementation performance on a state-by-state basis.
Regions should submit summaries of the collaborative EPA/State annual work planning
process addressing NPDES permitting, compliance monitoring, and enforcement activities,
including work-sharing, to the Office of Compliance and the Office of Wastewater
Management by October 3 1, 201 1 for FY 2012 activities.
Regions should focus their CWA enforcement work towards meeting the national target of
37% for concluding federal judicial and administrative enforcement actions resulting in a
reduction of pollutants that pertain to facilities discharging into waters that do not achieve
water quality standards. The regions should report their data per the November 2010
guidance issued by OECA, and any subsequent updates issued for FY2012.
During FY 2012, the primacy agency must address with a formal enforcement action or
return to compliance the number of priority systems equal to the number of its PWSs that
have a score of 1 1 or higher on the July 201 1 ETT report.
Project by State, and Indian country where applicable, the number of operating non-
governmental TSDFs, to be inspected by the Region during the year1. Regions must
commit to inspect at least two (2) TSDFs in each State or Indian country unless OECA
approves a deviation from this requirement. For example, deviations are given for states
with small universes where it might not make sense for a Region to inspect two TSDFs per
year. Financial responsibility is an important component of the RCRA core program and
should be included as part of the inspection of each TSDF (although the financial
responsibility reviews do not have to occur at the same time nor be conducted by the same
people who conduct the field inspections).
Project by State the number of operating TSDFs to be inspected by the State during the
year.
Inspect each operating TSDF operated by states, local, or Tribal governments.
Project by State and Indian country, the number of LQGs, including those at federal
N
1 N
N
N
N
N
N
N
N
1 N
N
N
N
N
N
N
N
1 N
N
N
1 N
N
N
N
N
N
1 N
N
N
1 N
N
N
N
N
1 Currently there is only one TSD in Indian country.
-------
5
5
\J
c.
o
5
5
5
5
5
\J
RCRA02.
s
RCRA04
OSRE-04
TSC01
FTFRA-
i1 ii1 ivri
FEDl
EPCRA
01
EPCRA
02
FED-
FAC05
facilities, to be inspected by the Region during the year. Each Region must commit to
inspect at least six (6) LQGs in each State, and 20% of the Region's LQGs universe in
Indian country, unless OECA approves a deviation from this requirement. For example,
deviations are given for states with small universes where it doesn't make sense for a
Region to inspect 6 LQGs per year or 20% of the Region' s LQG universe in Indian
country. In the Comment Section, provide the number of federal facility LQG inspections.
Project by State the number of LQGs to be inspected by the State during the year. At least
20 percent of the LQG universe should be covered by combined federal and State
inspections unless an alternative plan is approved under the RCRA CMS.
Project by State and Indian country the number of financial assurance mechanisms to be
reviewed by the Region during the year. Regions must commit to review financial test
and/or corporate guarantee submissions for compliance with the closure and post-closure
regulations at a number of facilities at least equal to the Region's commitment under
RCRA01. As an alternative, Regions may choose to conduct formal financial record
reviews for facilities that did not have a financial assurance review during the FY 2005-FY
2010 as part of the national enforcement initiative. The financial test/corporate guarantee
compliance evaluations or financial record reviews may occur at the same facilities being
inspected under RCRA01 or at different TSDFs.
For 100% of the financial test submissions received each fiscal year for corrective action
with cost estimates over $5 million, determine whether the submission is in compliance.
Where the submission is noncompliant, take appropriate enforcement action to address
noncompliance (e.g., notice of violation). If possible, return facility to compliance by end
of fiscal year.
Project the number of FY2012 TSCA inspections.
Project regional (federal) FIFRA inspections, including those at federal facilities. Each
Region should conduct a minimum often (10) FIFRA inspections. In the Comment
Section, provide the number of federal facility inspections.
Conduct at least 4 EPCRA 313 data quality inspections.
Conduct at least 20 EPCRA 313 non-reporter inspections.
Each Region must conduct ten (10) federal facilities inspections to support integrated
strategy areas, which include stormwater; federal underground storage tanks, federal
prisons; RCRA surface impoundments, RCRA corrective action sites, and vulnerable
populations. These inspections can be achieved through any combination of single media
or multimedia inspections with the following limitations: (1) a maximum of three UST
inspections can count toward this goal and (2) a maximum of three (3) vulnerable
community inspections can count toward this goal, and (3) for any multimedia inspection
conducted, it shall count as two inspections toward this goal if two of the individual
N
N
N
N
N
N
N
N
1 N
N
N
N
N
N
N
N
N
1 N
N
N
1 N
N
1 N
N
N
N
N
N
1 N
N
N
1 N
N
1 N
N
N
N
N
N
1 N
-------
5
SRF01
inspections support the Integrated Strategies. These inspections may simultaneously
satisfy inspections commitments required in National Enforcement Initiative or other core
program areas.
Develop a schedule of state reviews for the four years of Round 3 (2012-2016), completing
all remaining states from Round 2 in 2012. Included in this 2012 work are conducting for
one state, an integrated permit and enforcement review process. Identify the number of
Round 3 reviews to be conducted, consistent with SRF guidance in FY2012, by year and
by state. Where appropriate, program improvements should be captured in appropriate
negotiated PPAs, PPGs, or categorical grant agreements between the Region and the State,
with accountability for carrying out those commitments. Information on SRF reviews,
along with the recommendations, are to be entered into the SRF Tracker.
N
N
N
N
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