FY2013
Office of Enforcement and
Compliance Assurance (OECA)
National Program Manager (NPM) Guidance
April 30, 2012
Publication Number - Final:
305R12001
FY2013 OECA NPM Guidance Page 1
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Table of Contents
EXECUTIVE SUMMARY
A. Program Office 4
B. Introduction/Context 4
C. Program Priorities 4
D. Achieving Compliance for National and Regional Priorities 8
E. Cross Cutting Significant Strategies in the FY 2011-2015 Strategic Plan 9
F. Significant Changes from FY 2012 13
SECTION I: OECA GUIDANCE DEVELOPMENT AND FEEDBACK PROCESS 18
SECTION II: ENVIRONMENTAL JUSTICE PROGRAM PERFORMANCE EXPECTATIONS 18
1. Advance EJ goals through Selection and Implementation of National Enforcement Initiatives 19
2. Advance EJ Goals Through Targeting and Development of Compliance and Enforcement Actions 20
3. Enhance Use of Enforcement and Compliance Tools to Advance EJ Goals in Regions' Geographic
Initiatives to Address Overburdened Communities 21
4. Seek Appropriate Remedies in Enforcement Actions to Benefit Vulnerable and Overburdened
Communities and Address EJ Concerns 21
5. Enhance Communication with Affected Communities and the Public Regarding EJ Concerns and the
Distribution and Benefits of Enforcement Actions, As Appropriate 23
SECTION III: KEY PROGRAM PRIORITIES AND STRATEGIES TO ADDRESS ENVIRONMENTAL
PROBLEMS FROM AIR POLLUTION 25
A. Clean Air Act (CAA) 25
1. Implement National Enforcement Initiatives 25
2. Link with Top Office of Air and Radiation Priorities 26
3. Aggressively Go After Pollution Problems That Make a Difference in Communities 27
4. Reset Our Relationships with States and Tribes 30
5. Improve Transparency 31
6. Relevant Policies and Guidance 33
SECTION IV: KEY PROGRAM PRIORITIES AND STRATEGIES TO ADDRESS ENVIRONMENTAL
PROBLEMS FROM WATER POLLUTION 34
A. Clean Water Act (CWA) 34
1. Clean Water Act Action Plan 34
2. Implement National Enforcement Initiatives 36
3. Link with Top Office of Water Priorities 38
4. Aggressively Go After Pollution Problems That Make a Difference in Communities 38
5. Reset Our Relationships with States and Tribes 44
6. Improve Transparency 45
7. Relevant Policies and Guidance 45
B. Safe Drinking Water Act (SDWA) 45
1. Link with Top Office of Water Priorities 47
2. Aggressively Go After Pollution Problems That Make a Difference in Communities 47
3. Reset Our Relationships with States and Tribes 48
4. Improve Transparency 49
5. Relevant Policies and Guidance 49
SECTION V: KEY PROGRAM PRIORITIES AND STRATEGIES TO ADDRESS ENVIRONMENTAL
PROBLEMS FROM WASTE, TOXICS, AND PESTICIDES POLLUTION 50
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A. Resource Conservation and Recovery Act (RCRA) 50
1. Implement National Enforcement Initiatives 50
2. Statutory and Regulatory Requirements 50
3. Link with Top OSWER Priorities 51
4. Aggressively Go After Pollution Problems That Make a Difference in Communities 52
5. Reset Our Relationships with States and Tribes 55
6. Improve Transparency 57
B. Toxic Substances Control Act (TSCA) 57
1. Link with Office of Chemical Safety and Pollution Prevention's Top Priorities 59
2. Aggressively Go After Pollution Problems That Make a Difference in Communities 59
3. Reset Our Relationships with States and Tribes 64
4. Improve Transparency 66
5. Relevant Policies and Guidance 66
C. Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) 66
1. Link with Top Office of Pesticide Programs Priorities 67
2. Aggressively Go After Pollution Problems That Make a Difference in Communities 67
3. Reset Our Relationships with States and Tribes 74
4. Improve Transparency 75
5. Relevant Policies and Guidance 75
D. Specific Comprehensive Environmental Response Compensation and Liability Act (CERCLA)
Enforcement Program Performance Expectations 76
1. Link with Top OSWER Priorities 76
2. Aggressively Go After Pollution Problems That Make a Difference in Communities 76
3. Working with States and Tribes 79
4. Improve Transparency 79
SECTION VI: KEY PROGRAM PRIORITIES AND STRATEGIES TO ADDRESS ENVIRONMENTAL
PROBLEMS THROUGH CRIMINAL ENFORCEMENT 80
1. Criminal Enforcement Priorities 80
SECTION VII: KEY PROGRAM PRIORITIES AND STRATEGIES TO ADDRESS ENVIRONMENTAL
PROBLEMS THROUGH THE NATIONAL ENVIRONMENTAL POLICY ACT 82
A. Specific Federal Activities Program Performance Expectations 82
SECTION VIII: NATIONAL PROGRAM REQUIREMENTS FOR ADDITIONAL OECA PROGRAMS
UNDER GOAL 5 84
Specific Emergency Planning and Community Right to Know Act Performance Expectations
1. Link with Top Office of Environmental Information Priorities 84
2. Aggressively Go After Pollution Problems That Make a Difference in Communities 84
A. EPCRA313 84
B. EPCRA 311/312 86
C. CERCLA 103 and EPCRA 304 86
3. Reset our Relationships with States and Tribes 86
4. Improve Transparency 86
5. Relevant Policies and Guidance 87
D. Federal Facilities Enforcement Program Performance Expectations 87
E. State Review Framework (SRF) Expectations 90
SECTION IX. FY 2013 OECA WORKPLAN SUBMISSION INSTRUCTIONS
A. Annual Commitment System 91
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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 federally-
recognized Indian Tribes (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) 2013
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 assures 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 and tribes to assure that compliance
assurance and 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 2013 NPMG is accomplished under Goal 5 - "Enforcing
Environmental Laws" in the FY 2011-2015 EPA Strategic Plan.2 Goal 5 of the Strategic Plan
describes how EPA will address violators and 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 2013 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 When referring to states and tribes throughout this NPM guidance, OECA is referring to states and tribes authorized
to implement federal programs. EPA implements programs in states and Indian country until EPA approves the state or
Tribe to implement the inspection and enforcement program.
2 The Strategic Plan can be found at http://www.epa.gov/planandbudget/strategicplan.html
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Taking Action on Climate Change: Enforcement supports the Agency's climate strategy by
achieving reductions of global warming pollution in settlements of enforcement actions.
OECA will 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, glass and natural gas
exploration and production 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. 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 using EJ
criteria when enforcing RCRA corrective action requirements to meet RCRA 2020 goals
and ensuring that institutional controls are implemented at sites in environmental justice
areas of concern.
Protecting America's Waters: OECA's water enforcement program is focusing on the
compliance problems that are the biggest threat to the nation's waters, including overflows
of raw sewage and uncontrolled storm water discharges, as well as discharges of animal
manure from concentrated animal feeding operations. 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 protects communities by
targeting enforcement in areas where we find serious noncompliance, including in
communities that face multiple pollution threats. OECA works with other federal agencies
to make sure environmental justice considerations are included in their decision-making
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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 better access to more information about the
facilities in their communities, including information they need to take action to improve
their own communities.
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. Similarly, OECA consults, as appropriate, with tribes when
implementing federal environmental programs in Indian country and takes enforcement
actions to ensure that same degree of human health and environmental protection in Indian
country as elsewhere in the United States.
OECA's overall enforcement goals for FY 2013 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, as well as advance environmental justice by protecting vulnerable communities.
o Clean water
In follow-up to the Clean Water Act action plan, EPA is revamping enforcement
and working 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 discharges
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
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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
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 storm water discharges 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
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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, states and tribes need to consider how to best use the mix of compliance and enforcement
tools (compliance assistance, compliance monitoring, civil and criminal enforcement) to address all
the regulated entities contributing to the environmental problem. The strategic use of these 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.
Strategic use of the tools will benefit EPA, states and tribes by: 1) targeting limited compliance
monitoring and enforcement resources on the bad actors; 2) building capacity and coordination
across partners; and 3) expanding governments' effectiveness 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, state and tribal implementation activities in a set of annual commitments
at mid-year and at the end of a fiscal year based upon regional 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 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 fiscal year performance expectations.
Regional Priorities
EPA Regions may have additional 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 (NHs) emissions from
concentrated animal feeding operations (CAFOs).
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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 FY2013 that contribute to the
cross-cutting strategies' goals. Specific examples in the FY2013 guidance include the following:
Expanding the Conversation on Environmentalism
Data regarding state assessments, priorities and performance under the Clean Water Act (CWA)
will be made public, where possible, on a regular basis in a manner easily understood and used
by the public;
Compliance data will distinguish state information from Indian country information;
Information will be made available to communities, including tribal communities, who lack
access to the internet;
The 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/.
Agency Focus on Electronic Reporting: On March 24, 2011, EPA Deputy Administrator Bob
Perciasepe issued a memorandum in which he affirmed his support for using the National
Environmental Information Exchange Network (Exchange Network) as the preferred means of
environmental data sharing between EPA, states, tribes, and others. Also, this memorandum
affirmed the unanimous ECOS resolution calling for full implementation of the Exchange
Network, and represented a renewed joint commitment to success of the Network. The Office
of Enforcement and Compliance Assurance supports this goal. The specific activities which
must be carried out in support of this are discussed on pages 35 and 41 of this guidance.
The Environmental Information Exchange Network has provided the foundation for EPA, states
and tribes to now move aggressively to convert from old fashioned paper reports to electronic
reporting. To reduce burden, improve compliance, expand the information available to the
public about pollution that affects them, and improve the ability of EPA, states and tribes to
implement environmental programs, the Agency has commenced a comprehensive initiative to
convert to electronic reporting. EPA is focusing this initiative in two main areas: (1)
developing an Agency wide policy to ensure that new regulations include electronic reporting in
the most efficient way; and (2) developing and then implementing an Agency plan to convert
the most important existing paper reports to electronic, while also looking for opportunities to
reduce or streamline outdated paper reporting. Since this work is cross-cutting, EPA has
established an Agency Electronic Reporting Task Force to lead and manage this work.
The Agency invites the provision of examples to the Electronic Reporting Task Force of
experiences in moving from paper to electronic reporting. We are interested in learning from
the states and tribes about their successes and challenges in converting from paper reporting to
electronic. The Agency will keep states and tribes informed about its progress in this initiative.
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If a state or tribe would like to share information with the Electronic Reporting Task Force,
please contact David Hindin (OECA) and Andy Battin (OEI) for more information.
Strengthening State, Tribal and International Partnerships
Regions will continue to implement the CWA Action Plan in FY2013 by collaborating with
states to address NPDES permitting, compliance monitoring, and enforcement activities,
including work-sharing;
A majority of program narratives in the FY2013 guidance contain specific activities regarding
state and tribal relationships;
Regions should consult, as appropriate, with tribes when conducting civil inspections and
enforcement activity consistent with the applicable media and/or program-specific compliance
monitoring strategies and enforcement policies, and OECA's "Guidance on the Enforcement
Principles Outlined in the 1984 Indian Policy" (1/17/01). Consultations, civil inspections and
enforcement activity should ensure the same degree of protection of human health and
environmental protection in Indian country as elsewhere in the U.S.
Working for Environmental Justice (EJ) and Children's Health
The impact of enforcement and compliance efforts in communities overburdened by exposure to
environmental risks, including minority, low-income and indigenous communities, as well as
those with greater concentrations of sensitive populations, is an important consideration as
OECA undertakes investigations and compliance activities. Regions are directed to use the
Agency's environmental justice tools and methodologies as they consider any environmental
justice aspects to their enforcement and compliance activities.
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 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 raw sewage from contaminating surface and ground waters reduces children's
exposure to disease-causing pathogens or other contaminants which have potential adverse
health effects.
o Addressing the human health and environmental threats from of mining and mineral
processing can reduce exposure to asbestos and lead poisoning in children.
OECA's FY 2013 Children Health Measure: In addition to the national initiatives and
work in different media specific programs, OECA reduces risks to children through compliance
monitoring and enforcement of lead based paint (LBP) rules. Recent data show that tremendous
progress has been made in the continuing effort to eliminate childhood lead poisoning as a national
public health concern. Based on data from the U.S. Centers for Disease Control and Prevention
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(CDC), EPA has measured progress by tracking reductions in the number of children with elevated
blood lead-levels (EBLLs) of 10 micrograms per deciliter (mg/dL) or higher. CDC data released in
2009 indicated that the incidence of childhood lead poisoning at 10 mg/dL 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 EBLLs lower than 10 mg/dL.
Monitoring and enforcement efforts to promote compliance with LBP rules, particularly the
Renovation, Repair and Painting (RRP) Rule, advance the goal of eliminating and preventing LBP
hazards, which are the primary single cause of childhood lead poisoning. These efforts support the
Agency's mission to eliminate childhood lead poisoning. For this reason, the LBP component of
OECA's TSCA 01 ACS commitment, which focuses on inspections, will serve as OECA's FY 2013
measure of compliance work being done to protect children's health.
Better Serving Communities
In FY 2013, EPA will institutionalize its commitment to support communities both through
the resources EPA offers and the means by which we coordinate among programs. Since
March 2010, when Deputy Administrator Bob Perciasepe convened a multi-region, multi-
program effort to steer the Agency towards using communities as one of the Agency's
"organizing principles," significant progress has been made. A subset of 27 "community-
based programs" have been identified that, while not exhaustive, illustrate the investment
the agency has made across offices in direct assistance to communities. For example, since
its inception in 1994, OECA's Environmental Justice Small Grants Program has awarded
more than $23 million in funding to 1,253 community-based organizations, and local and
tribal organizations working with communities facing environmental justice issues.
Additionally, geomapping capabilities were completed in March 2012 to help the Agency
identify and track where EPA is working in communities through grants and technical
assistance. The geomapping has the potential to better coordinate Headquarters and regional
efforts and improve the ability to identify potential gaps in service to communities. Finally,
a new grants policy went into effect on March 31, 2012 establishing a 'One EPA' approach
to coordinating and implementing community-based grant programs.
In implementing EPA's long-term goals for an improved environment and better public
health in communities, for FY 2013, Regions are asked to consider the following
opportunities where appropriate:
1) Strengthen involvement and increase investment in one or more of the Agency's
programs that comprise the Community-Based Coordination Network; (Contact: John
Foster, Office of Sustainable Communities, at foster.john@epa.gov).
2) Support ongoing inter-agency partnerships that align resources or activities in
communities (e.g. the Interagency Working Group on Environmental Justice, the HUD-
DOT-EPA Partnership for Sustainable Communities, the Urban Waters partnership and
others);
3) Adhere to Office of Grants and Disbarment's (OGD's) Community-Based Grants Policy
(http://intranet.epa. gov/ogd/policy/gpi_12_02_communi ty_based_grants_03_02_12.pdf),
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including implementing identified best practices for streamlining competitions, considering
combining competitions, and implementing protocols to geo-code projects for inclusion in
Agency-wide mapping;
4) Work with OGD and the Office of Environmental Justice (OEJ) to post competition
schedules and other grant information;
http://www.epa.gov/ogd/training/resources_for_communities/community_grants_table.htm.
5) Utilize OSWER's Technical Assistance Services for Communities (TASC) contract to
provide technical assistance for communities that find it difficult to manage grants;
(Contact: Howard Corcoran, OARM, at corcoran.howard@epa.gov).
6) Increase the amount of training provided to regional staff to work within tribes and other
communities (for example, OITA's Working Effectively with Tribal Governments online
training, http://intranet.epa.gov /aieointr/training/tribal/EPA/mainmenu/ launchPage.htm, the
EJ Fundamentals Course available through http://intranet.epa.gov/oeca/oc/neti/index-
new.html); and
7) Work with Marsha Minter of OSWER, Charles Lee of OEC A, or John Frece of Office of
Policy [co-leads for a new community-based KPI in FY12] to identify a pilot project in each
region to implement the best practices generated through an assessment conducted under the
FY12 Community-Based KPI. (Contacts: minter.marsha@epa.gov, lee.charles@epa.gov,
frece.john@epa.gov.)
Compliance with Title VI of the Civil Rights Act of 1964
It is a priority of the Agency to ensure compliance with Title VI of the Civil Rights Act of
1964, http://www.epa.gov/civilrights/t61awrg.htm. This statute prohibits discrimination
based on race, color, and national origin, including limited English proficiency (LEP), by
entities receiving Federal financial assistance.
As required by implementing EPA regulations at 40 C.F.R. Part 7, EPA applicants must
complete EPA Form 4700-4 to demonstrate compliance with Title VI and other non
discrimination statutes and regulations, http://www.epa.gov/ogd/forms/adobe/4700-
4 sec.pdf. The regulations also impose specific obligations on grant recipients, including
providing compliance information, establishing grievance procedures, designating a Title VI
Coordinator, and providing notices of non-discrimination,
http://www.epa.gov/civilrights/docs/40p0007.pdf
Title VI requires EPA financial assistance recipients to provide meaningful access to LEP
individuals. To implement that requirement, and consistent with Executive Order 13166,
http://www.epa.gov/cvilrights/docs/eo 13166.pdf, the Office of Civil Rights (OCR) issued
guidance to recipients entitled, "Guidance to Environmental Protection Agency Financial
Assistance Recipients Regarding Title VI Prohibition Against National Origin
Discrimination Affecting Limited English Proficient Persons. "
http://frwebgate.access.gpo.gov/cgi-
bin/getdoc. cgi?dbname =2004 register &docid=fr25jn04- 79.pd
OCR also published a Title VI Public Involvement Guidance for EPA Assistance Recipients
Administering Environmental Permitting Programs,
http ://edocket.access. gpo. gov/2006/pdf/06-2691 .pdf
In coordination with the grants management community, OARM will work with OCR and
the Office of General Counsel to develop and implement appropriate grant conditions,
FY2013 OECA NPM Guidance Page 12
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training programs and monitoring strategies to help achieve compliance with Title VI and
implementing regulations and guidance.
All recipients of EPA financial assistance have an affirmative obligation to implement
effective Title VI compliance programs and ensure that their actions do not involve
discriminatory treatment and do not have discriminatory effects even when facially neutral.
Recipients should be prepared to demonstrate that such compliance programs exist and are
being implemented or to otherwise demonstrate how they are meeting their Title VI
obligations.
F. Significant Changes from FY2012
The Office of Enforcement and Compliance Assurance's FY 2013 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 appropriate. The
FY 2013 guidance describes specific expectations for Regions in implementing the Assistant
Administrator's priorities and explains how the enforcement program supports the priorities of other
EPA national programs. Some notable changes in specific programs contained within this guidance
are as follows:
Next Generation Compliance: OECA has identified a critical new investment area aimed at
instituting next generation compliance practices to build 21st century technical capabilities and
efficiencies in assuring compliance. Consistent with EPA's desire to better address large
regulated universes with approaches that go beyond traditional inspection and enforcement
activities, OECA and the Regions are supporting the Agency's Next Generation Compliance by
promoting electronic monitoring and reporting to improve targeting and transparency and
advancing new monitoring technologies to identify violations impacting public health and
harming the environment. For consent decrees that include a requirement to conduct a
performance test(s), Regions should seek having electronic copies of required performance test
reports submitted to the Agency through the Electronic Reporting Tool (ERT) when feasible.
Budget Challenges for FY 2013: Our top priority is ensuring that we address the most
important violations posing a threat to public health or the environment. It is also essential that
we invest in new ways to improve the effectiveness of our work, such as monitoring, electronic
reporting, and innovative enforcement approaches. Maintaining or even increasing our
investment in these top priorities during lean budget times requires us to make difficult choices,
and to work in partnership with States and Tribes to ensure that limited funds are focused on
those compliance and enforcement initiatives that will deliver the greatest benefit to people's
health.
In order to ramp up work on these priorities in a time of declining budgets, we necessarily will
have to cut back in other areas in FY13. In some cases, progress made in the past allows for
reduced effort today. In other programs, new electronic tools make it possible to do more with
less, or we can set a higher threshold for taking federal enforcement. In some cases, we will, out
of necessity, need to consider scaling back on important work. However, in every case we will
retain our capacity to address the most serious national problems, and will also continue to
FY2013 OECA NPM Guidance Page 13
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respond to the most egregious cases using criminal enforcement authorities, where that is
appropriate.
Although all NPM Guidance documents are being finalized today (per the Agency's annual
schedule), we are still are in the process of discussing the content and schedule for the budget
adjustments portion of the Guidance. With the participation of all the Regions and OECA
Offices, we are thinking through the issues associated with implementation of these reductions,
and considering the input from States and Tribes. We also plan to re-train staff who work in the
areas of reduced emphasis to take on other compliance and enforcement work. Discussions of
the budget adjustment plans will continue for the next several months.
Some changes to the February 10, 2012 proposed OECA NPM Guidance have already been
made, based on early comments from the States and Regions. For example, due to state
concerns, we have decided to retain at least a limited national presence in all of the adjustment
areas and are no longer proposing to completely disinvest in any programs. Some of the budget
adjustments outlined in this final guidance may be further revised as we continue work on
implementation plans.
So that we can transition to the changed profile given budget adjustments, this guidance requests
that Regions not initiate new work (e.g., inspections) in the areas under consideration for
reduction, without prior consultation with senior managers in Headquarters. There will be more
discussion on the consultation process before FY2013. Given the importance of compliance
monitoring and enforcement work, it will be critical to maintain travel funds for those purposes,
and to scale back on other types of travel instead where Regional travel funds are limited.
Two of the budget adjustment areas are not specific to any one media program and are not
discussed in the media specific sections. For that reason, they are discussed in this section as
follows:
Compliance Assistance (non-centers): Advances in information technologies and the
widespread availability of computer access make it possible for EPA to reconsider the delivery
of compliance assistance. EPA can provide on demand assistance via the web for many
regulated parties. States provide the vast amount of direct, day-to-day (or "retail") compliance
assistance, while third-party providers (such as academic institutions, non-profits, trade
associations or private consultants) offer more technical guidance and best practices, often on a
sector-specific basis. EPA programs have an important role to provide compliance guides for
new regulations that impact small business and do outreach as rules are being promulgated.
Anticipating tight budgets in FY13 and beyond, EPA's enforcement program needs to focus its
limited resources on the most pressing environmental and noncompliance problems. In that
context, OECA is planning to reduce its investment in compliance assistance and direct our
compliance assistance resources where they can have the greatest national impact. Advances in
IT make this greater impact possible, as we focus on wholesale distribution of compliance
guides and materials, especially via the web, development of two-way communication (made
FY2013 OECA NPM Guidance Page 14
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possible by electronic reporting) to deliver electronic assistance, and maximizing the use of
inspectors to direct companies to assistance resources.3
Audit Policy/Self-Disclosures: Since implementation of the Audit Policy began in 1995,
EPA's enforcement program has increased its understanding of environmental compliance
auditing, and believes that internal reviews of compliance have become more widely adopted by
the regulated community, as part of good management. In addition, EPA has found that most
violations disclosed under the Policy are not in the highest priority enforcement areas for
protecting human health and the environment. EPA believes it can reduce investment in the
program to a limited national presence without undermining the incentives for regulated entities
to do internal compliance reviews to find and correct violations. As we reduce investment in
this program, EPA is considering several options, including a modified Audit Policy program
that is self-implementing.4
Small Business Compliance Policy: EPA will continue to implement this Policy. Although
this is not a change for FY 2012, we are highlighting this upfront in response to questions
received.
RCRA Subtitle C Program: OECA deleted the ACS commitment RCRA 04 for financial
assurance. However, the NPM Guidance emphasizes that financial assurance compliance
evaluations should be part of any Compliance Evaluation Inspection.
Toxic Substance Control Act (TSCA) Program: Starting in FY2013, the One TSCA
approach includes activities in each TSCA focus area not subject to FY 2013 budget adjustment.
The extent of those activities is dependent on the suite of problems the Region identifies, and
the resources available to address them. Many of the activities are likely to be ones that
Regions have previously conducted, but were not captured in the ACS process.
CAA 112(r) Program: Potential changes to the definition of high risk facilities under the CAA
112(r) program have been reflected in this year's NPM Guidance.
Air Toxics National Enforcement Initiative: Industrial facilities emit significant amounts of
hazardous air pollutants (HAPs). Causes include noncompliance with regulations intended to
prevent the incomplete combustion of HAPs in steam-assisted flares due to low heat content and
over-steaming. EPA has determined that these problems are particularly likely to occur at
petroleum refineries and chemical, petrochemical, and polymer manufacturers. Under the Air
Toxics National Enforcement Initiative (NEI), the Regions are targeting compliance evaluations
(including CAA Section 114 information requests) at facilities in these sectors. The goal of the
flaring enforcement enhancements are to improve EPA's efficiency and effectiveness in
targeting, enforcing against, and reducing illegal emissions of HAPs from flares. We will do so
by piloting innovative, efficient enforcement approaches, i.e., a flaring efficiency enforcement
Note: To meet the agency wide schedule, the final OECA NPM Guidance is being issued now, although we have not
completed discussions on the content and schedule for the budget adjustments portion of the Guidance. Some of the
budget adjustments outlined in this final guidance may be revised as we continue work on implementation plans.
4 See footnote above.
FY2013 OECA NPM Guidance Page 15
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alert combined with individual-facility flaring notices, and using HQ contractor resources to
enhance the Regions' ability to evaluate facilities' compliance based on their 114 responses,
respond to violations, and meet existing ACS commitments more efficiently. In addition, we
will use the results to demonstrate compliance and pollution control impacts beyond individual
flaring enforcement actions to show general deterrence.
Integrated Municipal Stormwater and Wastewater Planning Approach: EPA engaged
stakeholders to develop and implement an Integrated Municipal Stormwater and Wastewater
Planning Approach Framework to address municipalities' numerous CWA obligations. This
approach will allow municipalities to prioritize and sequence CWA requirements in a manner
that addresses the most pressing public health and environmental protection issues first, while
maintaining existing regulatory standards that protect public health and water quality. All or part
of an integrated plan may be incorporated into the remedy of enforcement actions and/or into
NPDES permits. After the details of the development and implementation of this Approach are
finalized, OECA will decide what modifications to the National Municipal Enforcement
Initiative are necessary to promote and implement it. More detail about the changes and their
implications will be made available soon in follow-up to a series of integrated planning
workshops held with states, local governments and environmental groups. Information can be
found at: http://cfpub.epa.gov/npdes/integratedplans.cfm.
Preparation for implementing the proposed NPDES Electronic Reporting Rule: This
guidance identifies activities the Regions and states must complete to prepare for implementing
the proposed NPDES Electronic Reporting Rule, including support of the National
Environmental Information Exchange Network (Exchange Network).
EJ Screen: OECA will continue to participate in the cross-agency work of the EJ Screen
Workgroup, which is developing a nationally consistent EJ screening tool (EJ Screen) for
Agency-wide use. In the interim, OECA will continue to use its internal tool, the
Environmental Justice Strategic Enforcement Assessment Tool (EJSEAT) and other information
to support targeting and development of enforcement actions and to enhance performance
reporting. As we implement Plan EJ 2014, it will be important to ensure that OECA's internal
guidance to enforcement case teams is consistent with the approach(es) being developed by the
EJ Screen Workgroup. Therefore, upon completion of EJ Screen, OECA expects to phase out
EJSEAT and other screening tools, and will be working with Regions to provide guidance on
consistent use of EJ Screen around the country. Sections in this guidance referring to EJSEAT
will change as a result of the transition to EJ Screen.
FY 2013 Children's Health Measure for OECA: As proposed, the Lead Based Paint
component of OECA's TSCA 01 ACS commitment, which focuses on lead inspections, will
serve as OECA's FY 2013 measure of compliance work being done to protect children's health.
Inspector Credentials: In FY 2013, Regions will be required to re-credential many of their
federal inspectors. Documentation of the requirements and the process for obtaining
credentials are established in EPA Order 3510. EPA Order 3510 also requires that each EPA
office which prints and distributes credentials (i.e. federal credentials issued to state and tribal
inspectors to conduct inspections on behalf of EPA) must conduct an annual inventory including
FY2013 OECA NPM Guidance Page 16
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an annual physical possession check of 10% of the credentials. OECA will work the Regions to
establish a schedule and necessary steps for the re-credentialing of inspectors.
Compliance Monitoring National Dialogue: OECA will be holding a national dialogue on
how to expand the range of compliance monitoring activities to be credited under media
Compliance Monitoring Strategies (CMS). This is necessary as the regulated universe continues
to grow while federal and state resources become scarcer. Traditionally, on-site compliance
inspections and investigations have been the primary means for providing coverage of the
regulated universe. There are many additional activities regulatory agencies do to monitor
facility-level compliance that can and should be considered along with inspections and
investigations as contributing to our coverage goals. EPA Regions, states and tribes will be
invited to participate in this national dialogue in 2012, and should be ready to implement the
outcome of this discussion in 2013.
G. Contacts
For general questions or comments on the OECA National Program Managers Guidance please
contact:
Maureen Lydon
Office of Enforcement and Compliance Assurance
Office of Compliance
Planning, Measures, and Oversight Division
1200 Pennsylvania Ave. NW, M2221A
Washington, DC 20460
Email: lydon.maureen@epa.gov
FY2013 OECA NPM Guidance Page 17
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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 posted the FY 2013
draft NPM Guidance to allow Regions, states, tribes, and others to review and comment on the
draft. OECA responded to the comments and incorporated changes, as needed, in the final
document. This final guidance and a Response to Comments Summary have been posted on the
Internet identifying the changes made in the guidance as a result of comments on the draft.
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 compliance assurance and enforcement programs. In this role,
OECA ensures that facilities in communities disproportionately impacted by environmental
problems are complying with the law. OECA aggressively applies regulatory tools to protect these
communities, engages our regional, federal, state and tribal partners to meet community needs, and
fosters community involvement in EPA's decision-making processes by making information
available, as appropriate.
Second, OECA is the National Program Manager for the Agency's Environmental Justice (EJ)
Program, operating as the Office of Environmental Justice (OEJ). The EJ Program promotes
environmental justice to foster public health and sustainability in overburdened communities and
works to enable all major EPA Headquarter and Regional offices to address environmental justice
as part of their day-to-day business. In FY13, the OEJ will continue its work with EPA Regional
Offices to provide communities with funding, technical support, and tools to empower them to take
action to address issues in their communities.
OECA and all Regions are implementing the strategies and activities outlined in Advancing
Environmental Justice through Enforcement and Compliance, 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 concerns5 into the planning and implementation of program
strategies, case targeting strategies, and development of remedies in enforcement actions to benefit
overburdened communities6. OECA also plans to accelerate efforts to communicate more
5 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).
6 In Plan EJ 2014, EPA uses the term "overburdened" to describe the minority, low-income, tribal, and indigenous
FY2013 OECA NPM Guidance Page 18
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effectively with vulnerable and overburdened communities about enforcement actions and program
activities.
OECA has developed five strategies for Advancing Environmental Justice through Enforcement and
Compliance7:
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 FY2013, OECA will address our Plan EJ 2014 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, developed implementation
strategies and performance measures for each of the National Enforcement Initiatives. Each
initiative's strategy discusses how EJ concerns can be addressed in carrying out its activities,
e.g. by considering EJ concerns. The Agency also will seek appropriate judicial and
administrative remedies that reduce or eliminate pollution that may have a disproportionate
impact on overburdened populations.
To support EPA's cross-cutting fundamental strategy on Environmental Justice and Children's
Health, OECA's EJ Council is evaluating how existing program initiatives/activities can be
enhanced, as part of Plan EJ 2014, to maximize environmental and human health benefits for
disproportionately burdened communities. In FY2013, OECA and all Regions will implement
the National Enforcement Initiatives consistent with this commitment, including reporting on
these benefits.
populations or communities in the United States that potentially experience disproportionate environmental harms and
risks as a result of greater vulnerability to environmental hazards. This increased vulnerability may be attributable to an
accumulation of both negative and lack of positive environmental, health, economic, or social conditions within these
populations or communities.
7 The link to OECA's Plan EJ 2014 implementation plan is: http://www.epa.gov/environmental justiceplan-ej/ce-
initiatives.html
FY2013 OECA NPM Guidance Page 19
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2. Advance EJ Goals through Targeting and Development of Compliance and Enforcement
Actions
OECA and the Regions 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 implemented. As discussed above, the Strategic Implementation Teams for each
Initiative have identified potential opportunities to protect and benefit overburdened
communities when selecting and developing specific cases to achieve the Initiative goals. For
example, facilities that are impacting or threatening the drinking water supplies of poor rural
communities could be given priority attention when Teams are selecting specific CAFO
facilities for enforcement action. OECA and the Regions will also give specific consideration
and attention to overburdened communities, including those in Indian country, when selecting
enforcement actions to address other important compliance problems. 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.
OECA will continue to participate in the cross-agency work of the EJ Screen Workgroup, which
is developing a nationally consistent EJ screening tool (EJScreen) for Agency-wide use. In the
interim, OECA will continue to use its internal tool, the Environmental Justice Strategic
Enforcement Assessment Tool (EJSEAT) and other information to support targeting and
development of enforcement actions and to enhance performance reporting. As we implement
Plan EJ 2014, it will be important to ensure that OECA's internal guidance to enforcement case
teams is consistent with the approach(es) being developed by the EJ Screen Workgroup.
Therefore, upon completion of EJ Screen, OECA expects to phase out EJSEAT and other
screening tools, and will be working with Regions to provide guidance on using the national
tool to develop consistent use of EJ Screen around the country. Sections in this guidance
referring to EJSEAT will change as a result of the transition to EJ Screen.
COMMITMENT EJ01: HQ will analyze FY12 EJSEAT data to consider developing a
baseline for a budget measure related to case initiations in areas with EJ concerns.
In FY 2013, OECA will evaluate and begin post-pilot implementation of the Technical
Directive: Reviewing EPA Enforcement Cases for Potential EnvironmentalJustice Concerns
and Reporting Findings to the ICIS Data System. Regions and OECA will review new
enforcement cases for potential EJ concerns and enter the EJ data into ICIS in accordance
with the Technical Directive.
Each region will review its civil enforcement cases initiated in FY 2013 for Environmental
Justice concerns in accordance with the internal Technical Directive. All enforcement cases
with an EJSEAT score of 1, 2, or 3 will receive an enhanced level of review for EJ concerns
in accordance with the Technical Directive.
In December, 2011, the Office of Criminal Enforcement issued the policy, "OCEFT Policy
to Integrate Environmental Justice Concerns in Assessments of Criminal Investigations" and
will use the EJSEAT, or EJ Screen when it becomes available, as part of assessments for
FY2013 OECA NPM Guidance Page 20
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potential EJ concerns. OCEFT has modified its Criminal Case Reporting System (CCRS) to
track EJ reviews.
3. Enhance Use of Enforcement and Compliance Tools to Advance EJ Goals in Regions'
Geographic Initiatives to Address Overburdened Communities
Regions will continue to develop integrated strategies to focus on particular geographic areas in
their Regions with overburdened communities that are disproportionately affected by
environmental problems. Integrated strategies consider the full range of EPA's enforcement and
compliance assurance tools, as appropriate, to identify and address environmental problems in
areas with EJ concerns that are caused or made worse by violations of federal environmental
laws.
Regions, together with states, tribes and other partners as appropriate, should evaluate
facility compliance in overburdened 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 compliance monitoring and enforcement resources to address the
most significant issues first.
Regions should tailor compliance and enforcement actions to enhance EPA's ability to gain
environmental benefits in overburdened communities. For example, this could include use
of multi-media inspections and/or process inspections to comprehensively address potential
impacts from violations at a given facility.
OECA and the Regions should consider activities to effectively reach large numbers of
small sources with environmental violations that have significant local impacts on
overburdened communities.
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
children's exposure to air pollution. We will continue and accelerate these types of efforts to
reduce pollution burdens that have a disproportionate impact on overburdened populations.
FY2013 OECA NPM Guidance Page 21
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In addition to the benefits that can be obtained for overburdened communities through judicial
and administrative enforcement actions, there may be other, parallel opportunities 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 may 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 agreements" between local companies and communities to address facility
impacts not regulated by a permit or other law. OECA and the Regions will identify specific
opportunities, as appropriate, 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. OECA and the Regions will
document and share recommendations and best practices for taking action on these
opportunities.
OECA's criminal enforcement program is engaged in similar activities. In cases considered to
have potential EJ concerns the criminal investigation team will meet with the regional EJ
coordinator to obtain additional information supporting the preliminary EJ determination as well
as the community's health and environmental problems. OCEFT will increase efforts to benefit
affected communities by working with DOJ to (1) explore innovative uses of criminal
sentencing options, e.g., community service or environmental compliance plans, and (2) take
into account information obtained pursuant to the Crimes Victim's Rights Act (CVRA) when
developing environmental crimes case resolutions, e.g., restitution. The CVRA provides crime
victims with multiple rights, including the right to be heard in a sentencing proceeding and the
right to full and timely restitution. The CVRA also authorizes the courts to fashion reasonable
procedures to give effect to the statute's requirements when multiple crime victims - such as a
neighborhood or community - are involved. Restitution and community service may partially
or fully remedy the harm caused by the violation(s), as well as improve the environment of the
affected overburdened communities and the health of its residents. Even where the specific
pollution and/or harmful effects caused by the crime may no longer be mitigated or remedied,
community service can address similar threats in the same ecosystem or general geographic
area.
FY2013 OECA NPM Guidance Page 22
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5. Enhance Communication with Affected Communities and the Public Regarding EJ
Concerns and the Distribution and Benefits of Enforcement Actions, As Appropriate
OECA and EPA Regions, with the Department of Justice, will continue to increase their
communication with affected communities and the public about enforcement strategies and
actions that may affect vulnerable and overburdened communities. OECA recognizes 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 affected communities, including Tribal governments, 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 is important, it is no less important to receive input from
affected 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, including Tribal governments, 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 communities.
This information will be provided through EPA's website, local information repositories,
and other appropriate means.
To assist in identifying the risks and pollution experienced by a community due to
environmental crimes and potential remedies, OECA and DOJ will consider information
obtained pursuant to the Crime Victim's Rights Act (CVRA). In these situations,
appropriate CVRA mechanisms may be utilized for outreach to and communication with
victims, input into case resolution, and sentencing.
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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 affected communities' ability to understand our enforcement processes,
EPA 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 internal memorandum entitled "Guidance on
Characterizing and Communicating Environmental Justice Benefits Achieved in
Enforcement Actions'" (Sept. 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 plans developed and approved under Sections 110 and 11 l(d)
Title V Operating Permits
Part 82-Title VI Stratospheric Ozone Protection
Section 112(r) Prevention of Accidental Releases
Title II (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 discussed
below. Region-specific commitments for activities to support the goals and measures are negotiated
through the ACS process.
Cutting Toxic Air Pollution that Affects Communities' Health: In 1990, Congress identified
hazardous air pollutants (HAPs), currently totaling 187, that present significant threats to human
health and have adverse ecological impacts (http://www.epa.gov/ttn/atw/18Spoils.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. Through the Air Toxics
Initiative, EPA will undertake compliance monitoring and enforcement activities to maximize
environmental and human health benefits, which is particularly important for disproportionately
burdened 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. OECA will also provide equipment and training to inspectors to
enhance the effectiveness of on-site activities.
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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 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. EPA will also place emphasis on compliance evaluations and enforcement
actions relating to the carbon black industry.
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. As
part of OECA's energy extraction enforcement initiative, EPA is utilizing a range of its authorities,
including the Clean Air Act and Clean Water Act to address noncompliance from natural gas
extraction and production activities that may cause or contribute to adverse public health impacts.
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, which will provide guidance to Regions on compliance monitoring
and enforcement activities 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.
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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 is 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.
In addition to the activities being conducted pursuant to the national enforcement initiatives,
Regions and delegated state, tribal and local agencies 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 with
special attention directed toward reducing toxic air pollution. Regions should work with
delegated state, tribal and local agencies 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, including, but not limited to, the National Scale Air
Toxics Assessment (NATA) data, chemical toxicity data, non-attainment areas, and the
Environmental Justice Strategic Enforcement Assessment Tool (EJSEAT). Community input
should also be considered. Regions and delegated agencies should continue to work with EPA
Headquarters to develop new targeting tools to help focus resources on the most important
problems.
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 in the Air Facility System (AFS) 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.
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Participate in a national dialogue to broaden the types of activities that may be counted as
compliance monitoring under the CAA CMS. Traditionally, on-site compliance evaluations and
investigations have been the primary means for undertaking coverage of the regulated universe.
However, as the regulated universe of sources continues to expand and challenge our ability to
conduct on-site evaluations, EPA and delegated agencies need to use available resources in the
most effective manner to determine facility compliance.
The CAA CMS does currently encourage the use of a variety of techniques to determine
compliance [on-site and off-site Full Compliance Evaluations (FCEs), Partial Compliance
Evaluations (PCEs), and Investigations]. Nevertheless, a national dialogue to identify additional
activities and analyses that provide facility-specific compliance status information would add
important tools and techniques to our compliance monitoring toolbox. As additional activities
are identified, EPA will consider how to incorporate them into the CAA CMS and the annual
negotiations between Regions and delegated agencies regarding commitments for compliance
monitoring plans.
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 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.
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 that meets one or more of the following criteria: 1)
facilities whose reported Risk Management Program (RMP) worst-case scenario population
that exceeds 100,000 people; 2) any RMP facility with a hazard index greater than or equal to
25; and/or 3) facilities that have had one or more significant accidental releases within the
previous five years. (Note: facilities that have only program 1 processes8 are not considered
Program 1: Processes which would not affect the public in the case of a worst-case release (in the
language of Part 68, processes "with no public receptors within the distance to an endpoint from a
worst-case release") and with no accidents with specific offsite consequences within the past five
years are eligible for Program 1, which imposes limited hazard assessment requirements and
minimal prevention and emergency response requirements.
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high risk). Inspections at high-risk facilities should also include an evaluation of compliance
with applicable EPCRA and CERCLA requirements. Regional program managers may, after
consultation with and approval by headquarters, alter the population and/or hazard index
thresholds for their region in order to include additional facilities on the regional high-risk list.
Regions may use this approach to account for region-by-region variations in population
density, types of covered facilities, facility geographic clustering or other factors. However, all
changes to the high-risk criteria must first be approved by headquarters.
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 2011 "Guidance for
Conducting Risk Management Program Inspections under Clean Air Act Section 112(r)" This
document established 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'. Settle
or litigate cases filed in years prior to FY 2013.
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. Regions should, when appropriate, authorize state and tribal inspectors to
conduct compliance evaluations on EPA's behalf. Authorization decisions, training, and
tracking of state and tribal inspectors should be undertaken consistent with OECA's Guidance
for Issuing Federal EPA Inspector Credentials to Authorize Employees of State/Tribal
Governments to Conduct Inspections on Behalf of EPA (2004).
EPA Order 3510 requires that each EPA office which prints and distributes credentials (i.e.
federal credentials issued to state and tribal inspectors to conduct inspections on behalf of EPA)
conduct an annual inventory, including an annual physical possession check of 10% of the
credentials.
Support the Agency's Next Generation Compliance by promoting electronic monitoring and
reporting to improve compliance, transparency and targeting as well as by advancing new
monitoring technologies to enhance the ability to identify violations that may harm public
health and/or the environment. For example, for consent decrees that include a requirement to
conduct a performance test(s), Regions should seek having electronic copies of required
performance test reports submitted to the Agency through the Electronic Reporting Tool (ERT)
when feasible.
COMMITMENT CAA04: The number of compliance evaluations (or other agreed upon
compliance monitoring activities pursuant to the national dialogue on CAA compliance monitoring)
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
FY2013 OECA NPM Guidance Page 29
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enforcement program outside of the National Enforcement Initiatives, and identified by the air
program (e.g., MACT, NSPS).
4. Reset Our Relationships with States and Tribes
The Regions should work with the delegated state, local and tribal agencies 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. Such
meetings also will help to further region/state/local communications to ensure resources are
used most effectively to address the most significant environmental sources of pollution and the
most serious noncompliance.
In instances where a delegated state, tribe or local agency is not meeting performance
expectations, EPA Regions should focus oversight resources to the most pressing performance
problems and work to demonstrably improve the delegated agency's performance through these
actions. The Regions need to take action when necessary to raise awareness about issues
needing attention to achieve the goals of the federal environmental laws and ensure a level
playing field between and among states and Indian Country. The Regions should ensure
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), and consistent with revisions to national
emission standards, including the treatment of emissions from startup, shutdown, and
malfunction events. The Regions should monitor the level and quality of efforts undertaken by
the delegated agencies to ensure strong enforcement of environmental laws. In the absence of
an appropriate response by a delegated agency, the Region should take enforcement action to
address serious violations. Enforcement actions, whether taken by the Regions, delegated
states, tribes or local agencies, 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. Such planning processes are to aid the delegated agencies in fully utilizing
the flexibilities available in the CMS and tailoring strategies to state/local-specific
circumstances.
Having frequent (at least monthly) discussions with delegated agencies to ensure consistent
implementation of the HPV Policy.
Implementing the State Review Framework (SRF) for the CAA Program and ensuring progress
with corrective actions identified in the SRF reports.
Regional direct implementation in Indian country includes applying the various CAA
compliance monitoring strategies and enforcement policies, and OECA 's Guidance on the
Enforcement Principles Outlined in the 1984 Indian Policy (January 17, 2001). OECA 's
Guidance on the Enforcement Principles Outlined in the 1984 Indian Policy contains
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procedures for consultation with federally-recognized tribes in the civil compliance monitoring
and enforcement context and contains threshold criteria for EPA's consideration of enforcement
actions. The threshold criteria are not intended to, and should not, result in a lesser degree of
human health and environmental protection in Indian country than elsewhere in the U.S.
COMMITMENT CAA06: Ensure that delegated state, tribal and local 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 or alternative activities (pursuant to the CAA CMS national dialogue), this
commitment should reflect the alternative plan. [Note: Break out evaluation and activity
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, tribal or 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 delegated state, tribal and local agencies 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.
Such complete, accurate, timely data is a critical component of effective transparency.
Work with EPA Headquarters to ensure that when delegated agencies use the flexibilities
offered in the CMS to tailor their strategy to state/local specific circumstances, such use of
flexibility is taken into account to accurately represent delegated agency performance in
program reviews and to the public.
Work with EPA Headquarters to modernize the Air Facilities System (AFS).
Acid Rain: Given tight budgets, EPA is looking for efficiencies in areas of the air program, such as
the area of acid rain. Sources of acid rain consistently have high compliance rates because nearly
all sources have a Continuous Emissions Monitor (CEM) system that must be used and their sulfur
dioxide allowances are tracked in a national database. The use of CEMs, transparency, and the
continued and robust enforcement of the Clean Air Act's New Source Review requirements have
resulted in strong compliance performance. In addition, the pollutants covered by the acid rain
program are also addressed by other EPA programs. In light of these factors, EPA's enforcement
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program is able to shift to a limited national presence in this area and focus its specific acid rain
resources on other high priority work9.
Stratospheric Ozone: Through a multitude of innovative and flexible regulatory approaches and
voluntary programs, the Agency continues to meet its responsibility for protecting the stratospheric
ozone layer. For example, the Office of Air and Radiation (OAR) implements regulatory programs
to phase out the production and import of ozone-depleting substances (ODS) in the U.S. and guides
the transition to safer substitutes while assuring U.S. compliance with treaty obligations under the
Montreal Protocol. OAR also has several voluntary partnerships to encourage superior
performance, such as "Green Chill," a partnership with those grocery store chains that want to
improve their environmental performance, while saving money by reducing leaks of ozone and
climate-damaging refrigerants. The effectiveness of these programs allows the enforcement
program to reduce enforcement resources in this area to a limited national presence, and to focus on
responding to the most serious violations in this program (e.g., illegal importation of ODS).
Through regulatory and voluntary efforts as well as international engagement, education, and
outreach, the Agency will continue to make significant strides to protect the ozone layer, reduce
emissions of high global warming potential gases, and protect people's health.10
Asbestos NESHAPs: The Clean Air Act (CAA) National Emission Standards for Hazardous Air
Pollutants (NESHAP) for Asbestos specifies work practices to be followed during demolitions and
renovations of asbestos-containing structures, installations, and buildings (excluding residential
buildings that have four or fewer dwelling units). Building owners and/or contractors are required
to notify applicable State and local agencies and/or EPA Regional Offices before demolitions or
renovations of buildings that contain a certain threshold amount of asbestos. EPA and states
conduct inspections as needed, take enforcement actions when violations of notification or work
practices are identified, and make Applicability Determinations (AD) under the regulations.
In light of budget constraints expected in FY13, EPA will maintain a limited national presence for
asbestos NESHAP enforcement, with a focus on high-priority federal activities such as assessing,
advising, and supporting state and local emergency response and recovery after catastrophic
situations (e.g., earthquakes, hurricanes, and tornadoes) where structures with asbestos containing
materials have been destroyed and normal procedures for abating asbestos before demolition are not
feasible. Headquarters' development of new regulatory applicability determinations will be limited
to requests that pose issues of first impression that are of national importance. Criminal
enforcement will continue to be a viable and robust tool to address criminal violations of the
Asbestos NESHAP regulations. Delegated state programs will continue to conduct the day-to-day
activities associated with the receipt of notifications and related compliance monitoring and
enforcement activities.11
9
Note: To meet the agency wide schedule, the final OECA NPM Guidance is being issued now, although we have not
completed discussions on the content and schedule for the budget adjustments portion of the Guidance. Some of the
budget adjustments outlined in this final guidance may be revised as we continue work on implementation plans.
See previous footnote.
11 See previous footnote.
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Wood Heater Program: New regulatory approaches being proposed provide opportunities for
EPA to utilize its resources more effectively in monitoring and enforcement. EPA's Office of Air
and Radiation is proposing changes to the New Source Performance Standards (NSPS) for
residential wood heaters. The proposed rule will reflect significant advancements in wood heater
technologies and design that limit particulate matter emissions. The proposed revisions are
expected to require manufacturers to use third-party laboratories to review certification reports and
submit compliance paperwork electronically. The proposal will also consider Agency coordination
of compliance, monitoring, and enforcement activities with State and local governments. EPA will
maintain a limited national role, focused on managing the certification process and conducting
limited compliance and enforcement activities. Resource savings will be directed to other high-
priority enforcement work. This approach is possible because of the substantial emission reductions
achieved by the manufacturers of wood heaters and the anticipated streamlining of the NSPS'
compliance, monitoring, and enforcement activities.12
6. Relevant Policies and Guidance
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:
The Air Facility System Business Rules Compendium
www. epa. gov/compliance/re source s/policies/data/systems/air/afsbusine ssrulescompendium .pdf
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/re source s/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://cfbub.epa.gov/compliance/resources/policies/civil/penalty/
Note: To meet the agency wide schedule, the final OECA NPM Guidance is being issued now, although we have not
completed discussions on the content and schedule for the budget adjustments portion of the Guidance. Some of the
budget adjustments outlined in this final guidance may be revised as we continue work on implementation plans.
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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 stormwater, 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 tribes with program delegation, and the Office of
Water, continues to implement the CWA Action Plan ("the Action Plan") issued in October 2009.
Pursuant to the Action Decision Document, issued in May 2011, 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. Switch from existing paper reporting to electronic reporting, resulting in increased efficiency
and improved transparency of the NPDES program.
2. Use "Next Generation Compliance" approaches to create a new paradigm in which regulations
and permits compel compliance via public accountability, self-monitoring, self-certification,
electronic reporting and other methods.
3. Address the most serious water pollution problems by fundamentally re-tooling key NPDES
permitting and enforcement practices, while continuing to vigorously enforce against serious
violators.
4. Conduct comprehensive and coordinated permitting, compliance, and enforcement programs to
improve state and EPA performance in protecting and improving water quality.
These elements are consistent with the Assistant Administrator's goals for the compliance and
enforcement program, listed on pages 6-7 of this Guidance.
Regions and authorized states should participate in workgroups tasked with designing and
implementing these changes as well as use the new tools, policies and regulations as appropriate.
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For FY2013, Regions should participate in the following CWA Action Plan efforts:
1. In preparation for implementing the proposed NPDES Electronic Reporting Rule, the
Regions must:
a. Ensure states not already migrated to ICIS-NPDES meet all milestones and
schedules for migrating by end of first quarter FY2013.
b. Actively market and implement the use of NetDMR by permittees for the electronic
transfer of Discharge Monitoring Reports (DMR) to ICIS-NPDES, supported by the
National Environmental Information Exchange Network (Exchange Network). The
Regions should also begin implementing OECA's new electronic Notice of Intent
(eNOI) tool which is planned to be completed by the end of first quarter FY2013
contingent on FY2012 funding;
c. Ensure their states are preparing for the implementation of the electronic reporting
rule by adopting the use of EPA electronic reporting tools (NetDMR, eNOI), or
developing their own state e-reporting tools. The plan is to have the first reporting
under the NPDES Electronic Reporting Rule begin January 2014.
d. Work closely with the Office of Compliance to individually evaluate their states
readiness to implement the electronic reporting rule, including:
i. CROMERR-compliant electronic reporting tools;
ii. State system readiness; and
iii. Level of participation using the state e-reporting tools (i.e., 90% participation
by NPDES-regulated facilities).
2. 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.
3. Where appropriate, and in accordance with any subsequent guidance, compliance and
enforcement personnel should provide relevant feedback to permitting offices regarding
permit prioritization and modifications to consider when new permits are developed or a
permit is renewed. Permit writers should consider comments provided by inspectors and/or
enforcement personnel in developing appropriate permit conditions.
4. Where the Regions have direct implementation responsibilities, and where data can be made
available, utilize multi-sector general permit (MSGP) violation and benchmark data to
support monitoring, targeting and enforcement.
5. Actively participate in CWA Action Plan projects including those to address effluent
violations reported on Discharge Monitoring Reports (DMRs) using new strategies and
tools, such as expedited administrative enforcement actions and electronic compliance
assistance. Consider innovative approaches to deal with more routine paperwork violations.
6. Designated regional and HQ managers and staff should use the results of the 2012
enforcement management system (EMS) gap analysis, consider input obtained from the
states, and help to draft new approaches for a revised CWA/NPDES EMS framework that
supports the principles described in the 2009 CWA Action Plan. This framework will
supersede the existing CWA/NPDES EMS that is used to prioritize violations for
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appropriate enforcement responses. Full implementation of the NPDES electronic reporting
rule will be a key pre-requisite to implementing the new EMS.
7. Regions should broaden the scope of targeting, monitoring, enforcement and state oversight
beyond traditional NPDES majors. New targeting tools, such as the DMR Pollutant Loading
Tool, can be used to determine the source, location and amount of discharged pollutants. It
includes a subset of non-major facilities, and can be found at:
www.epa.gov/pollutantdischarges.
2. Implement National Enforcement Initiatives
Implementation strategies have been developed for the National Enforcement Initiatives that include
final goals and measures, and guidance on implementation. Region-specific commitments for
activities to support the goals and measures are negotiated through the ACS process.
The 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 with aging sewer systems are
problematic because these systems were not designed to handle heavy rainfall and snowfall, nor can
they handle the added burden of growing urban populations and industrial discharges. As a result,
untreated sewage may overflow from sewers into waterways, or back 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 CWA 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. In FY2011-2013, this
National Enforcement Initiative focuses on reducing discharges from combined sewer overflows
(CSOs), sanitary sewer overflows (SSOs), and municipal separate storm sewer systems (MS4s) 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 stormwater 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
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appropriate. Information on green infrastructure projects can be found at:
http://cfpub.epa.gov/npdes/home.cfm?program_id=298. Regions should also implement the
Integrated Municipal Planning Approach (http://cfpub.epa.gov/npdes/integrationplans.cfm) to
address municipalities' numerous CWA obligations related to their municipal sewer system
infrastructure. EPA engaged stakeholders to develop and implement an Integrated Municipal
Planning Approach to address municipalities' numerous CWA obligations related to their municipal
sewer system infrastructure. This approach will allow municipalities to prioritize CWA
requirements in a manner that addresses the most pressing public health and environmental
protection issues first, while maintaining existing regulatory standards that protect public health and
water quality. All or part of an integrated plan may be able to be incorporated into the remedy of
enforcement actions. After the details of the development and implementation of the Approach are
finalized (anticipated by Spring 2012), OECA will decide what modifications to the National
Municipal Enforcement Initiative Strategy are necessary to implement this Approach. More detail
about the changes and their implications will be made available after it is finalized. More
information can be found at:
http://www.epa.gov/npdes/pubs/integrated_planning_framework%20_draft.pdf
Preventing Animal Waste from Contaminating Surface and Ground Waters: Concentrated
animal feeding operations (CAFOs) are a subset of livestock and poultry animal feeding operations
(AFOs) that meet the regulatory thresholds of number of animals for various animal types. Animals
are kept and raised in confined situations for a total of 45 days or more in any 12-month period and
feed is brought to the animals rather than the animals grazing or otherwise feeding in pastures,
fields, or on rangeland. At these facilities, live animals as well as mortalities, feed, and animal
wastes may be congregated on a small land area. These operations generate significant volumes of
animal waste which, if improperly managed, can result in environmental and human health risks
such as water quality impairment, fish kills, algal blooms, contamination of drinking water sources,
and transmission of disease-causing bacteria and parasites associated with food and waterborne
diseases. EPA's goal is to take action to reduce animal waste pollution from livestock and poultry
operations that impair our nation's waters, threaten drinking water sources, and adversely impact
vulnerable communities. EPA's regulations require permit coverage for any large CAFO that
discharges manure, litter, or process wastewater into waters of the U.S. CAFOs that discharge but
do not have NPDES permits are in violation of the CWA. EPA will continue to focus enforcement
investigations on these facilities, particularly in priority areas. For FY2013, OECA and the Regions
will focus primarily on existing large and medium CAFOs identified as discharging without a
permit to waters of the U.S. In addition, some resources will be used to assure that CAFOs that
already have permits are in compliance with those permits. Each Region, coordinating with their
states where appropriate, will consider a variety of factors to prioritize its CAFO activities. These
factors include, but are not limited to, identifying watersheds or water bodies where CAFOs are
negatively affecting water quality, proximity of CAFOs to drinking water sources and vulnerable
communities, and status of authorized state CAFO programs.
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. Drilling and hydraulic fracturing ('Tracking")
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activities have led to concerns about ground water pollution and the safety of drinking water
supplies in many parts of the country. Of particular concern are current practices in the industry to
discharge or haul processed wastewaters to Publicly Owned Treatment Works (POTWs) or
centralized waste treaters who may not have controls in place to effectively treat these wastewaters.
Concerns also exist about potential to contaminate drinking water sources. As part of OECA's
energy extraction enforcement initiative, EPA is utilizing a range of its authorities, including the
Clean Water Act and the Clean Air Act, to address non-compliance from natural gas extraction and
production activities that may cause or contribute to adverse public health impacts.
3. 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 and working toward environmental justice, OECA's enforcement and
compliance efforts will be particularly focused on protecting communities, especially
underserved or economically distressed communities, by getting raw sewage out of the water,
cutting pollution from animal waste, and reducing polluted stormwater runoff. See
http://www.epa.gov/urbanwaters.
Strengthening Protections for Our Waters: OECA is improving protection of water through the
CWA Action Plan (http://www.epa.gov/compliance/civil/cwa/cwaenfplan.html). See section
A.I.
Chesapeake Bay: Regions 2, 3, 4 and 5 should refer to the Chesapeake Bay Compliance and
Enforcement Strategy implementation plans for details about expectations and commitments for
stormwater, wastewater, CAFOs and air deposition. Implementation plans include goals and
measures with targets for accomplishing activities to support each, e.g., three MS4 audits per
year. Relevant information related to compliance and enforcement is posted at:
http://www.epa.gov/compliance/civil/initiatives/chesapeakebay.htmltfwatershed.
4. 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
stormwater run-off.
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 stormwater from streets, parking lots, and commercial and industrial
businesses. Many of these older urban areas include minority and low income communities.
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Exposure to animal waste from CAFOs 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.
OECA, together with the Office of Water and authorized state and tribal water control agencies will
work to identify at-risk waters and use 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 with 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 Action Plan, such as available ambient monitoring data, the
Discharge Monitoring Report (DMR) Pollutant Loading Tool (http://cfpub.epa.gov/dmr/),
and other GIS resources, to target the most significant sources of pollutants on those water
bodies and watersheds. Priority should be given to water bodies that are not meeting water
quality standards and that have disproportionate impacts on individual communities.
Utilize the Inspection Targeting Model for the CWA, as appropriate, and provide feedback
to OECA. The model 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. ep a-oti s. gov/oti s/itm).
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, hereafter "NPDES
CMS"). Target inspections to identify and address serious water quality problems where
NPDES compliance and enforcement tools will be effective in addressing the pollution
problem. In 2012, EPA updated the Inspection Targeting Model with annual estimates of
pollutant discharge amounts to allow users to sort on the facilities with the largest pollutant
loads and largest pollutant load over limits. In FY 2013, EPA Regions and states should be
using the model as a tool for targeting the most serious water quality problems.
Participate with authorized agencies in a national dialogue on what activities count as
"compliance monitoring" under the 2007 NPDES CMS. Traditionally, on-site inspections
and investigations have been the primary means for providing coverage of the regulated
universe. The rapidly expanding universe of NPDES regulated sources has outpaced our
ability to conduct on-site inspections at all permittees. The Regions and authorized agencies
need to use their resources in a way that maximizes the reach of their compliance monitoring
activities. Out of the national dialogue on compliance monitoring, in 2012 OECA expects to
issue additional guidance that Regions and states will begin to use in FY 2013 on the
parameters for conducting periodic "off-site" evaluations of permittee compliance. Any off-
site evaluations that are counted under the CMS will need to be sufficient to ascertain
permittee compliance, be well documented and reported to a national data system. The
guidance on off-site evaluations may cover things such as CWA Section 308 Information
Requests, subpoenas, review of a year's worth of DMRs coupled with information provided
FY2013 OECA NPM Guidance Page 39
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by the permittee on calibration of discharge monitoring equipment and ambient sampling. In
addition, starting in 2012 and continuing in 2013. OECA will be conducting a study to
evaluate whether the CMS is achieving the desired results and whether any adjustments are
needed.
Ensure that all available data regarding violations are evaluated to determine the seriousness
of the violation and the appropriate response. Facilities in significant noncompliance (SNC)
should be considered for appropriate follow-up action, along with point sources with serious
effluent limit violations, unpermitted discharges, systemic reporting problems or violations
at facilities with potential to seriously impact water quality. Ensure that civil enforcement
actions, where appropriate, are taken to address serious violations contributing to a
community's water quality problems. Ensure compliance with federal consent decrees and
administrative orders where appropriate. Implement targeted "real time" (quick response)
enforcement activities to address CWA violations impacting communities' waters, such as
violations at concentrated animal feeding operations.
In addition, Regions should:
Implement CWA specific geographic compliance and enforcement strategies, as appropriate
for their Region, including CWA Action Plan projects, 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, including in Indian
Country. (Note that Regions may accomplish this review through a routine screen of the
PCS or Integrated Compliance Information System ICIS-NPDES data and reviewing the
DMRs themselves as necessary.)
Evaluate the effectiveness of the approval authority's pretreatment program by inspecting
and auditing pretreatment POTWs. In conjunction with POTW inspections, Regions and
states should ensure that POTWs with control authority are carrying out their
responsibilities, including annual inspections of Significant Industrial Users (SIUs). Where
states are the control authority, Regions should assess each state program's performance in
conducting annual inspections of Significant Industrial Users (SIUs).
Regional audits or inspections should be conducted in accordance with the NPDES CMS
and can be conducted in conjunction with other compliance inspections at major and minor
POTWs, such as compliance evaluations (CEIs), or separately. For Industrial Users (lUs) in
non-authorized states that discharge into POTWs without approved pretreatment programs,
the Regions will inspect the lUs in accordance with the NPDES CMS.
All states now have their own safety program for biosolids, and there are also third party
verification programs that support compliance in this area. In light of these facts, and the
scientific studies indicating that biosolids present a lower risk than other substances, EPA
expects to reduce investment in this area to support other high priority enforcement work.
To monitor this area, EPA plans to rely on straightforward performance standards,
recordkeeping, and reporting requirements that, once EPA's NPDES e-reporting rule is fully
implemented, will provide for increased transparency and accountability with regard to this
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sewage sludge. EPA will maintain a limited national enforcement capacity in this area to
respond to national priority work that may arise in this program.13
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, MOA reviews, regular EPA/state meetings to review performance, data
not entered into national databases and Government Accountability Office (GAO) and/or
Inspector General (IG) reviews of state performance. In FY2013, EPA will implement an
integrated and streamlined NPDES enforcement and permitting oversight review process,
including guidance and training for EPA Regions and states.
Where authorized 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." Regions should focus oversight resources on the most pressing performance
problems in states. Regions and states must work together to demonstrably improve state
performance.
Regions should investigate the 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
and CWA section 404 permitting requirements. If CWA violations are identified,
enforcement action should be taken where appropriate.
HQ, and Regions as necessary, will coordinate with Coast Guard in implementing the Vessel
General Permit MOU and review of Coast Guard deficiency data. Regions will coordinate as
necessary with Coast Guard sector offices on conducting joint inspections with Coast Guard.
Continue implementing the Federal Facility Integrated Strategy on Stormwater.
Work with states that are currently using the NPDES Permit Compliance System (PCS) to
prepare to migrate to the modernized data system, ICIS-NPDES by the end of the first
quarter of FY 2013. On March 24, 2011, EPA Deputy Administrator Bob Perciasepe issued
a memorandum in which he affirmed his support for using the National Environmental
Information Exchange Network (Exchange Network) as the preferred means of
environmental data sharing between EPA, states, tribes, and others. Also, this memorandum
affirmed the unanimous ECOS resolution calling for full implementation of the Exchange
Network, and represented a renewed joint commitment to success of the Network. The
Office of Enforcement and Compliance Assurance supports this goal. Regions must work
closely with the Office of Compliance to evaluate their states remaining in PCS on their
readiness to migrate, and what assistance is needed for the migration, if any. PCS will be
turned off by the third quarter of FY 2013.
Regions should support the Agency's Next Generation Compliance by promoting electronic
monitoring and reporting to improve targeting and transparency as well as by advancing new
monitoring technologies to enhance the ability to identify violations impacting public health
and harming the environment. For example, for consent decrees that include a requirement
Note: To meet the agency wide schedule, the final OECA NPM Guidance is being issued now, although we have not
completed discussions on the content and schedule for the budget adjustments portion of the Guidance. Some of the
budget adjustments outlined in this final guidance may be revised as we continue work on implementation plans.
FY2013 OECA NPM Guidance Page 41
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to conduct sampling or to report, Regions should seek to obtain electronic reporting to ICIS-
NPDES.
COMMITMENT CWA07: By December 31, 2012, provide to Headquarters a specific NPDES
Compliance Monitoring Strategy (CMS) plan for each authorized state in the Region, targeting the
most significant sources with potential to impact water quality. 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 flexibilities in the 2007 NPDES CMS policy and any
amendments or further guidance as a result of the national dialogue on expanding the range of
activities to be counted as compliance monitoring under the NPDES CMS. At the end of the 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 EPA
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), and Fish and Wildlife Service) 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.
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 CWA section 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
OECA to cross-train inspectors and to train other federal and state agencies and stakeholders
to identify CWA section 404 violations.
The Section 404 Enforcement Strategy was piloted during FY 2011 - 2012, and the Regions
are expected to work with OECA in implementing the strategy in 2013.
C. CWA Section 311-Oil Pollution Act
Regions should:
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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 should
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 facility response plan
(FRP) violations at facilities owned or operated by the same company. Cases should 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 (e.g. warning letters, notices, etc.), administrative (e.g.
Class I or Class II penalties, orders, information requests, etc.) and judicial (e.g. complaints
or consent decrees in federal court) enforcement actions to address noncompliance with
EPA Product Schedule Requirements for use of dispersants and other substances.
Investigate, target and develop informal (e.g. warning letters, notices, etc.), administrative
(e.g. Class I or Class II penalties, orders, information requests, etc.) and judicial (e.g.
complaints or consent decrees in federal court) 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) wherever the violation occurs, whether or not the spill occurred at a facility subject
to EPA's spill prevention or facility response planning regulations.
When appropriate, 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 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 all spill prevention and facility response plan 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.
Where opportunities exist, coordinate with OECA and OEM to provide outreach and
assistance to the agricultural sector on Spill Prevention, Control, and Countermeasure
(SPCC) rule that will be required to come into compliance in 2013.
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5. Reset Our Relationships with States and Tribes
Regions should:
Work with authorized states to 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) to the table together, identifies and discusses
shared goals and 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.
Convene routine and regular meetings between the EPA region and authorized state to
discuss progress towards meeting annual permitting and enforcement commitments, and
how the state has been performing overall in the NPDES program.
In instances where authorized states are not meeting performance expectations, EPA
Regions should focus oversight resources to the most pressing performance problems in
states and should work to demonstrably improve state performance. EPA Regions need to
take action when necessary to communicate what things need attention to achieve the goals
of the federal environmental laws and ensure a level playing field amongst authorized states.
Conduct a sufficient number of oversight NPDES inspections to ensure the integrity and
quality of each authorized state or tribe compliance monitoring programs. EPA 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 accompanying state
inspectors during inspections, or conducting a separate inspection at the same facility at a
later date to verify the same findings.
Implement Round 3 of 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.
When conducting state program oversight:
o Ensure the full regulated universe of NPDES permittees is addressed in the state's
CMS plan, focusing on the most important sources and most serious noncompliance;
o Review the number of SNCs identified (and percent of universe), especially those
related to effluent exceedance or illegal discharges by state and by region and the
number (and percent) addressed in a timely and appropriate manner; and
o Track and manage results of State Review Framework and Permit Quality Reviews
and progress in correcting identified issues.
Regional direct implementation in Indian country includes applying the various clean water
compliance monitoring strategies, enforcement policies, and OECA 's Guidance on the
Enforcement Principles Outlined in the 1984 Indian Policy (January 17, 2001). OECA 's
Guidance on the Enforcement Principles Outlined in the 1984 Indian Policy contains
procedures for consultation with federally-recognized tribes in the civil compliance
monitoring and enforcement context and contains threshold criteria for EPA's consideration
of enforcement actions. The threshold criteria are not intended to, and should not, result in a
lesser degree of human health and environmental protection in Indian country than
elsewhere in the U.S.
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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).
EPA Order 3510 requires that each EPA office which prints and distributes credentials (i.e.
federal credentials issued to state and tribal inspectors to conduct inspections on behalf of
EPA) conduct an annual inventory, including an annual physical possession check of 10% of
the credentials.
6. 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 2013, 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 accurate and 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. States utilizing CMS
flexibility should report on the commitments in their CMS plan. 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 the oil and hazardous substance spills reported to the National
Response Center (NRC) to ensure they are timely and accurately reported.
Regions should make information available to communities, including tribal communities,
who lack access to the internet.
7. Relevant Policies and Guidance
Additional information about OECA's CWA programs can be found at:
http://www.epa.gov/compliance/monitoring/programs/cwa/index.html
http://www.epa.gov/compliance/civil/cwa/index.html
http ://cfpub. epa.gov/npdes/stormwater/munic.cfm
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 Program; and
Working with Regions to address imminent and substantial endangerment circumstances
under Section 1431 of the SDWA.
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PWSS 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 Response Policy (ERP) establishes EPA's expectations of how
primacy agencies are to address drinking water violations and protect public health by returning
violating public water systems (PWSs) to compliance. Following the concepts of the ERP, the
Enforcement Targeting Tool (ETT) generates a list of all PWS that have unresolved violations and
identifies those systems that have the most serious, most numerous, and longest-lasting unresolved
drinking water violations.
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 higher 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. Violations that have been returned to compliance or that
are attached to an addressing formal enforcement action have a point value of zero. The higher a
PWS's total ETT score, the more serious is its overall unresolved noncompliance.
The ERP provides that all drinking water violations at PWSs are to be resolved and that PWSs are
to be 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, within six months of having reached a score of 11, either return to compliance or receive
formal enforcement action that compels the system to return to compliance in a timely fashion. 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. Most primacy
agencies (either EPA, states, tribes or territories) have markedly reduced their backlog of priority
systems in the past years.
As a longer term goal, primacy agencies are encouraged to address violations at non-complying
PWSs before they become priority systems. A quick response to SDWA violations decreases the
risks to public health and allows primacy agencies flexibility to use a variety of tools such as
assistance and informal enforcement actions as they work with PWSs to develop the technical,
financial, and managerial capacity that will allow them 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. This proactive approach is especially important in addressing violations at PWSs
in Indian country, as it allows for timely notice to the tribe as soon as a violation is identified. The
purpose of this contact is to discuss the system's options for returning to compliance and to ensure
that the coordination and consultation encouraged by EPA's tribal policies occur on a schedule
consistent with the ERP.
OECA strongly encourages primacy agencies to improve the completeness, accuracy, and
timeliness of violation reporting and enforcement response data they report to the Safe Drinking
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Water Information System (SDWIS)/FED. EPA is responsible for ensuring that primacy agencies
fulfill the conditions of their primacy agreements, including fully reporting inventory, compliance
and enforcement data to EPA. When primacy agencies do not properly report information in
SDWIS, EPA cannot assure the integrity of the program or reliably report to the public, Congress
and other oversight bodies. Inaccurate and incomplete data result in incorrect and inconsistent ETT
scores within and across states. The Government Accountability Office (GAO) in FY2011
highlighted the seriousness of underreporting SDWA data and recommended action by EPA to
improve the quality of data reported by states.
OECA is committed to partnering with OGWDW to improve the quality of data on PWSs in
SDWIS, and asks regional enforcement staff and managers to work with their states to promote
accurate, timely and complete reporting. As resources allow, HQ and the Regions will conduct file
reviews of the compliance and enforcement data in SDWIS for their primacy agencies.
1. Link with Top Office of Water Priorities
OECA addresses top Office of Water priorities for the SDWA by supporting the core national
program areas that are critical to ensuring safe drinking water. The areas where OECA provides
support include:
Development or revision of drinking water standards;
Ensuring that states have the tools needed to begin implementing new rules as they take
effect;
Implementation of drinking water standards and technical assistance to water systems to
enhance their technical, managerial, and financial capacity;
Drinking Water State Revolving Fund; and
Underground Injection control (UIC).
By participating on regulatory workgroups, OECA addresses enforcement and compliance
issues in the early stages of the drinking water standards. In implementing the program, OECA
and primacy agencies will work with the Office of Water in identifying systems that are not
complying with the standards and may need technical assistance. Through cross-program
collaboration in the areas like capacity development, operation certification, and sanitary
surveys, the Office of Water and OECA can leverage available tools and resources to obtain
safe water.
2. Aggressively Go After Pollution Problems That Make a Difference in Communities
The ETT and ERP apply equally to all public water systems in the U.S., regardless of the size or
which agency implements the Safe Drinking Water program. EPA's goal is to ensure that all
consumers receive equal protection of their drinking water.
OECA will continue to place emphasis on drinking water in schools and in Indian country.
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
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headquarters will track primacy agency performance in meeting the timely and appropriate
provisions of the ERP.
COMMITMENT SDWA02:
During FY 2013, 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 2012 ETT report14.
State, territory and tribal breakouts shall be indicated in the comment field of the Annual
Commitment System.
3. Reset Our Relationships with States and Tribes
Regions are responsible for working with states, territories, and tribes with primacy in an oversight
capacity to ensure that the ETT is used and the ERP is implemented as intended. OECA and the
Regions will regularly discuss progress returning systems to compliance, identifying those for
which return to compliance is impracticable, and regional performance overall in implementation of
the program. OECA will work with the primacy agencies on assessing data completeness based on
violation data to determine if rules are being implemented in a timely manner.
The Regions will hold regular in-depth discussions with their states, territories, and tribes with
primacy that include, but are not limited to, progress in returning systems to compliance, monitoring
compliance progress on orders, number of systems addressed, number of systems in violation,
consistency and appropriateness of compliance determinations and data quality, preparation for new
rules, 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 and tribes with primacy are not meeting performance expectations established by this
commitment or systems are in substantial noncompliance with state enforcement orders, Regions
should take action to ensure the systems with the most serious violations are addressed or returned
to compliance. Regions should focus oversight resources on the most pressing performance
problems in states/territories/tribes with primacy and should work to improve performance through
these actions. Also, EPA Order 3510 requires that each EPA office which prints and distributes
credentials (i.e. federal credentials issued to state and tribal inspectors to conduct inspections on
behalf of EPA) conduct an annual inventory, including an annual physical possession check of 10%
of the credentials.
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 are applying the
ETT and ERP. Regional primacy (direct implementation) in Indian country includes applying the
14 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 2013 SDWA ACS with
respect to a priority system if the score for that system has been brought below, and remains below, eleven.
FY2013 OECA NPM Guidance Page 48
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various SDWA compliance monitoring strategies and enforcement policies, including the SDWA
ERP and ETT, and OECA 's Guidance on the Enforcement Principles Outlined in the 1984 Indian
Policy (January 17, 2001). OECA 's Guidance on the Enforcement Principles Outlined in the 1984
Indian Policy contains procedures for consultation tribes in the civil compliance monitoring and
enforcement context and contains threshold criteria for EPA's consideration of enforcement actions.
The threshold criteria are not intended to, and should not result in a lesser degree of human health
and environmental protection in Indian country than elsewhere in the U.S.
4. Improve Transparency
OECA headquarters will continue its annual national report on PWS compliance and enforcement
as required by the Safe Drinking Water Act, and on progress in returning systems to compliance.
Past reports are 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 continue to be available to the
public through the Enforcement and Compliance History Online website at http://www.epa-
oti s. gov/echo/index. html
Underground Injection Control (UIC) Program
EPA plans to focus UIC enforcement efforts on UIC violations that pose the greatest threat to health
by adjusting our work on smaller and more routine UIC violations. Data generally shows good
compliance at most facilities that EPA inspects, supporting a strategy of focusing our attention on
the worst problems. This adjustment is not expected to affect compliance or enforcement activities
where EPA directly implements the program, or UIC activities related to implementation of the
Energy Extraction National Enforcement Initiative.15
5. Relevant Policies and Guidance
SDWA compliance and enforcement policies and guidance can be found at:
http://www.epa.gov/compliance/resources/policies/civil/sdwa/drinking water erp 2009.pdf
http://water.epa. gov/lawsregs/guidance/sdwa/index. cfm
http://water.epa. gov/lawsregs/guidance/sdwa/wsg. cfm
Information about EPA's tribal programs can be found at:
http://www.epa.gov/tribal/laws/sdwa.htm
http://www.epa.gov/tribal/consultation/index.htm
Note: To meet the agency wide schedule, the final OECA NPM Guidance is being issued now, although we have not
completed discussions on the content and schedule for the budget adjustments portion of the Guidance. Some of the
budget adjustments outlined in this final guidance may be revised as we continue work on implementation plans.
FY2013 OECA NPM Guidance Page 49
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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. Implement National Enforcement Initiatives
One of the Administrator's priorities is "cleaning up our communities" - using all the tools at our
disposal, including enforcement and compliance efforts, to focus on making safer, healthier
communities. The relevant FY 2011 - 2013 national enforcement initiative for RCRA program that
supports this Agency priority 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 enforcement initiative to bring these facilities into
compliance with the law and protect the environment and nearby communities.
Region-specific commitments for activities to support the goals and measures are negotiated
through the ACS process. It is expected there will be approximately 12 mineral processing
inspections required for 2013 nationally.
2. Statutory and Regulatory Requirements
FY2013 OECA NPM Guidance Page 50
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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 generally be Compliance Evaluation Inspections (CEIs).
The RCRA CMS allows states (or Regions with direct implementation responsibility) to conduct
Focused Compliance Inspections (FCIs) in lieu of CEIs at TSDFs if the states have approval from
their Region (Regions with direct implementation responsibility should have approval from HQ)
and the TSDF meets the established requirements (i.e., has been inspected at least two times and has
no significant noncompliance).
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 year16. 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 evaluating compliance with 40 CFR
Parts 264/265 Subpart H should be included as part of the inspection of each TSDF (although such
evaluations do not have to occur at the same time nor be conducted by the same people who
conduct the field inspections). If a Region determines that there are unique circumstances in the
Region or with a particular TSDF, the Region may contact Headquarters to discuss undertaking a
detailed evaluation of compliance with 40 CFR Parts 264/265 Subpart H at another TSDF.
COMMITMENT RCRAOl.s: Project by state the number of operating TSDFs to be inspected by
the state during the year.
Only one inspection per facility counts towards this coverage measure. The RCRA CMS
establishes minimum annual inspection expectations for TSDFs: The inspections for
RCRA01 and RCRAOl.s should be CEIs. CEIs include evaluating compliance with the
financial assurance requirements, 40 CFR Parts 264/265 Subpart H. 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 RCRA03: Inspect each operating TSDF operated by states, local, or Tribal
governments.
3. Link with Top OSWER Priorities
OECA addresses top OSWER priorities for RCRA in the following ways:
Safe Waste Management and Clean Up, Recycling, and Resource Conservation: OECA
maintains an overall enforcement presence in RCRA that supports OSWER programs and
16
Currently there is only one TSD in Indian country.
FY2013 OECA NPM Guidance Page 51
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rulemaking efforts including those regarding CERCLA 108(b) and Cathode Ray Tubes
(CRTs).
Support continued progress towards the 2020 Corrective Action aspiration goals by targeting
enforcement on facilities that have not made meaningful progress.
Emergency Preparedness, Implementing the EPAct Response and Homeland Security:
OECA maintains an overall enforcement presence in RCRA that supports OSWER
programs.
4. Aggressively Go After Pollution Problems That Make a Difference in Communities
a. RCRA Subtitle C Hazardous Waste 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, including in Indian Country, and authorized states are expected to
follow the guidance in the RCRA CMS. (EPA directly implements the RCRA program in Indian
country in coordination with Tribes because RCRA precludes EPA from authorizing tribal
programs.)
To enable states to monitor and identify 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. EPA may screen for potential environmental justice concerns at RCRA
facilities by analyzing demographics and environmental factors.
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
authorized states and Regions when developing annual plans for respective activities in the Region.
The areas of concern are:
Surface Impoundments: EPA, with support from authorized 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. This area of concern will include a focus on wastewater
treatment units.
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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. To ensure that meaningful cleanup progress is being made at all facilities
subject to corrective action, Regions and authorized states should be monitoring compliance
with orders and permits, identifying substantial noncompliance with such instruments, and
taking enforcement actions where appropriate. When monitoring compliance with orders
and permits, Regions should use electronic reporting tools whenever feasible.
The Regions should:
Conduct compliance monitoring and pursue enforcement to ensure that pollution problems that
matter to communities are aggressively addressed.
Support, and encourage states to support, OC's RCRA inspector training development effort.
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). Enhance
coordination in the RCRA program pursuant to the "Best Practices to Enhance Coordination in
the RCRA Program."
Conduct an annual inventory, including an annual physical possession check, of 10% of the
credentials (i.e. federal credentials issued to state and tribal inspectors to conduct inspections on
behalf of EPA) consistent with EPA Order 3510.
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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. Regions should select at least 2
of the Region's total LQG inspections at facilities described in the high priority section as areas of
emerging environmental concern. Regions may work with OECA to coordinate these inspections,
including whether the inspection will be conducted at a TSDF or LQG. 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 may include the review of financial
assurance instruments received by the states within each region. For those states that are not
authorized for corrective action, the Regions should be reviewing the financial assurance
instruments as part of EPA's role of implementing and enforcing the corrective action program in
unauthorized states and Indian Country. Regions conducting financial assurance instrument
reviews for the RCRA Subtitle C closure/post-closure regulatory program (under RCRA01) may
also review any corresponding corrective action submissions as part of the completion of this
program measure.
COMMITMENT OSRE04: Regions must commit to inspect at least one (1) RCRA corrective
action financial assurance instrument per state, with at least 50% being financial test or corporate
guarantee reviews. Where the submission is noncompliant, take appropriate enforcement action to
address noncompliance (e.g., notice of violation). Or, where appropriate, work with the state to
ensure appropriate action is taken to address noncompliance. 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.
Approved 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.
EPA anticipates providing continued support for UST inspections. The Agency believes that it can
refocus its UST enforcement efforts to address violations that pose the greatest threat to health, and
where a federal response is necessary and shift away from enforcement work on more routine UST
violations. EPA intends to maintain compliance monitoring and enforcement resources to directly
implement the UST program in states and territories that do not have state program approval, where
necessary, and in Indian Country. The enforcement program will also continue to support the
Office of Underground Storage Tanks in promulgating any UST regulations and help develop
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innovative approaches to promote and maintain compliance using next generation compliance and
enforcement methods.17
Generally, EPA actions will complement and provide oversight of state activities. Remaining
regional work will generally focus on enforcement and compliance activities as described below
and will be consistent with the guidance under development for focusing work:
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 non-compliers; (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.
Take enforcement actions and assess penalties, as appropriate. Focus on developing large
complex cases involving noncompliance on a corporate-wide basis or noncompliance in
multi-state operations. 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.
5. Reset Our Relationships with States and Tribes
RCRA compliance monitoring is a collaborative effort between OECA, Regions, and authorized or
approved 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.
To the extent practicable, Regions and authorized or approved 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
Note: To meet the agency wide schedule, the final OECA NPM Guidance is being issued now, although we have not
completed discussions on the content and schedule for the budget adjustments portion of the Guidance. Some of the
budget adjustments outlined in this final guidance may be revised as we continue work on implementation plans.
FY2013 OECA NPM Guidance Page 55
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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.
Focus oversight resources on the most pressing performance problems in states and work to
demonstrably improve state performance. Regions need to take enforcement action where
states are not addressing serious violations to call attention to needed improvements in order
to achieve the benefits of 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.
Regional direct implementation in Indian country includes applying the various RCRA
compliance monitoring strategies and enforcement policies and OECA 's Guidance on the
Enforcement Principles Outlined in the 1984 Indian Policy (January 17, 2001). OECA's
Guidance on the Enforcement Principles Outlined in the 1984 Indian Policy contains
procedures for consultation with federally-recognized tribes in the civil compliance
monitoring and enforcement context and contains threshold criteria for EPA's consideration
of enforcement actions. The threshold criteria are not intended to, and should not, result in a
lesser degree of human health and environmental protection in Indian country than elsewhere
in the U.S.
Participate with authorized or approved states in a national dialogue to expand the range of
compliance monitoring activities that may be counted under the RCRA compliance
monitoring strategy. Traditionally, on-site compliance inspections and investigations have
been the primary means for undertaking coverage of the regulated universe. However, as the
regulated universe of sources continues to expand resulting in a significant challenge to our
ability to conduct on-site evaluations, the Regions and authorized or approved states need to
use available resources in the most effective manner.
RCRA Corrective Action
RCRA corrective action is implemented by EPA and 43 authorized states and territories. On April
27, 2010, OECA and OSWER jointly issued the "National Enforcement Strategy for Corrective
Action" (NESCA). This strategy 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, 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.
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OECA will continue to provide training to both Regions and states on how to review financial test
and corporate guarantee submissions for compliance. EPA and its state partners are currently in the
process of assessing the contribution of NESCA in achieving progress toward the 2020 Corrective
Action Goals.
Regions and authorized states should:
Enhance coordination within your offices and among regulatory partners.
Emphasize compliance monitoring, including ensuring that a compliance schedule is
in place at all EPA-lead and state-lead facilities under a permit or order, determining
whether noncompliance with cleanup milestones exists, and taking appropriate
action in cases of noncompliance.
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; 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 Guidance
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 provides EPA with authority to require reporting, record-keeping
and testing requirements, and restrictions relating to chemical substances and/or mixtures. TSCA
also addresses the production, importation, use, and disposal of specific chemicals, including lead-
based paint (LBP), formaldehyde, polychlorinated biphenyls (PCBs), and asbestos.
OECA addresses toxics problems through the following TSCA programs:
Lead-based Paint Risk Reduction Program.
New and Existing Chemicals Programs (TSCA Sections 4, 5, 6, 8, 12 and 13).
Formaldehyde in composite board products (a new addition to TSCA).
PCB Program.
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Asbestos Program, which includes the Worker Protection Standard, Model Accreditation Plan
Program, and Asbestos Hazard Emergency Response Act (AHERA).
TSCA Compliance Monitoring Strategy
On September 16, 2011, the TSCA Compliance Monitoring Strategy (CMS) became effective. The
CMS adopts a strategic "One-TSCA" program approach, which focuses TSCA resources on
addressing the Region's most significant TSCA challenges.
To help implement the One-TSCA approach, the TSCA ACS commitments will include a new
commitment to report the Region's other compliance monitoring activities beyond inspections and
investigations (see the CMS for further details on compliance monitoring activities).
OECA will be holding a national dialogue on how to expand the range of compliance monitoring
activities to be credited under media CMS. This is necessary as the regulated universe continues to
grow while federal and state resources become more scarce. Traditionally, on-site compliance
inspections and investigations have been the primary means for providing coverage of the regulated
universe. There are many additional activities regulatory agencies do to monitor facility-level
compliance that can and should be considered along with inspections and investigations as
contributing to our coverage goals. EPA Regions, states and tribes should participate in this
national dialogue in 2012, and be ready to implement the outcome of this discussion in 2013.
Consistent with EPA's desire to better address large regulated universes (e.g., the vast universe
subject to the LBP Renovation, Repair and Painting Rule [ RRP Rule]) with approaches that go
beyond traditional inspection and enforcement activities, Regions are expected to support the
Agency's Next Generation Compliance by promoting electronic monitoring and reporting to
improve targeting and transparency as well as by advancing new monitoring technologies to
enhance the ability to identify violations impacting public health and harming the environment.
OC Resources Provided for TSCA Implementation
OECA received appropriated funding for portions of the LBP, PCB and Asbestos programs to be
given to identified states, tribes and territories (collectively, states) under State and Tribal
Assistance Grants (STAG) for implementation of those programs. Additionally, OECA has
received funds appropriated for Environmental Program and Management (EPM) LBP compliance
monitoring activities. These funds are not to be directed to other programs or for other uses.
Funding for State/Tribal Programs
In the past, OECA has made about $5 million ($M) in STAG funds available annually for
implementing the LBP, Asbestos, and PCB programs. OC has distributed these funds to the
Regions, who then negotiate grant agreements with the states to support state compliance and
enforcement activities. The Regions conduct oversight of the state programs and grants. Regional
direct implementation of the asbestos, PCB and LBP programs has been expected to complement
state implementation activities. Further guidance on Regional direct implementation activities and
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grant oversight for asbestos and PCBs will be provided in implementation plans addressing budget
adjustments in these areas.
Currently, $1.5M (of the total $5M STAG dollars) support LBP programs. These funds are divided
among: 1) 41 states and two tribes authorized for the § 402(a) lead abatement program; 2) five
states authorized for the § 406(b) Pre-renovation Education (PRE) program; and 3) twelve states
authorized for the RRP program. The remaining $3.5M in STAG funds support twelve asbestos
waiver states, fourteen non-waiver states and nine PCB state programs. For FY 13, OECA will
evaluate the future strategic use of STAG funds and the oversight of state grants.
Funding for Regional Programs
OECA has made about $1.2M in EPM funds available annually for regional Senior Environmental
Employee (SEE) inspectors for LBP direct implementation programs. It is important that these
EPM funds be used only for compliance monitoring activities (i.e., activities that determine
compliance status) and not for enforcement or administrative support.
Screening Tools and Checklists
OC plans to develop and refine screening tools/checklists that the Regions may use to support
multi-media activities that can be included in the Region's TSCA02 reporting commitment. These
tools will be designed for an inspector to quickly complete while at a facility conducting an
inspection for programs other than TSCA. The use of these tools may help the Region to target for
further inspections or to determine that the facility is likely to be in compliance with the applicable
TSCA requirements. In any event, these tools will provide EPA with additional coverage for the
TSCA programs. The Regions and states are free to develop and use their own checklists/screening
tools that are as least as inclusive as the HQ tools. If they do, they are expected to share those tools
with HQ, the other Regions and states. OC will ask for electronic copies of such tools during the
monthly conference calls and will establish a location where they will be available for anyone to
review and use for their own programs.
1. Link with Office of Chemical Safety and Pollution Prevention's Top Priorities
OECA addresses the Office of Chemical Safety and Pollution Prevention (OCSPP) priorities for
TSCA programs in the following way:
Reduce Lead Risks: OECA provides overall direction to Regions and authorized states, tribes
and territories 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.
2. Aggressively Go After Pollution Problems That Make a Difference in Communities
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TSCA's enforcement programs are significant to communities because they address chemicals that
can pose serious risks to human health and the environment. Lead-based paint is particularly
dangerous to children: exposure may cause reduced intelligence, learning disabilities, behavior
problems, and other developmental delays. Because LBP is found in pre-1978 buildings, it is more
common in communities predominated by older housing; in some cases, this housing is in low-
income, minority, and environmental justice (EJ) communities. Due to these risks, OECA has made
ensuring compliance with the TSCA LBP requirements its top priority for the TSCA compliance
monitoring and enforcement program.
ACS Commitments and Implementation
COMMITMENT TSCA01: Project the total number of FY2013 TSCA inspections. In the
comment field of the Annual Commitment System (ACS), the Region shall break out the number of
projected inspections by TSCA program area (LBP, New and Existing Chemicals, formaldehyde,).
Note: For the reasons discussed in the executive summary, the LBP component of this TSCA ACS
commitment (TSCA 01) will serve as OECA 's FY 2013 measure of compliance work being done to
protect children's health.
COMMITMENT TSCA02: Report other compliance monitoring activities at the end of the year;
and break-out the description of other such activities by TSCA program area. (See the CMS and the
future outcomes of the compliance monitoring national dialogue for more details).
For Regional ACS planning purposes, Regions should target their FY2013 ACS commitments
based upon a historic baseline (e.g., the last three years of representative TSCA resources available
for inspections and other compliance assurance activities), and describe how those resources will be
utilized in FY2013. If the Region's FY2013 bid is significantly lower than its recent past output (or
lower than national output norms consistent with resources), then the Region should be prepared to
explain the rationale for such deviation to Headquarters.
Regions may need to make adjustments before or during the fiscal year to accommodate potential
activities for the new formaldehyde rule (discussed below). Such potential activities include work
with other programs related to TSCA screening activities. In addition, some inspection resources
may be shifted to other compliance monitoring activities (e.g., where a Region has a backlog of
enforcement actions, it may shift inspection resources to work with local housing code authorities to
ensure any ordered repairs to target housing are done in compliance with the RRP requirements).
Regions that remain invested in the new and existing chemicals program should direct 10 percent of
their TSCA resources to ensuring the safety of chemicals (new and existing chemicals) and the
formaldehyde rule (where appropriate) and 90 percent of their TSCA resources to the lead-based
paint (LBP) program. All other Regions should devote up to 5 percent of their TSCA resources to
the formaldehyde rule (where appropriate) and the remaining percent of their TSCA resources to the
LBP program. Almost all (i.e., 95 percent) of the LBP resources should be directed to the RRP
Rule. Section 1018 inspections should only be conducted in response to tips and complaints or as
part of a RRP or abatement inspection.
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a. TSCA Lead Risk Reduction Program
Regions and authorized states are expected to implement the CMS for LBP, including the principles
and activities identified for the RRP, § 402 Abatement, § 406 PRE, and § 1018 rules as an integral
part of the Region's One-TSCA program. The CMS articulates and encourages coordinated
activities aimed at: 1) determining compliance among the regulated universe; and 2) using non-
traditional approaches to promote compliance by regulated operations.
Regions should implement the program priorities and activities set out in detail in the CMS. Those
activities include conducting an appropriate balance of the various types of inspections (e.g., record
reviews, training course audits, and work-site inspections); and conducting other compliance
assurance activities, such as using checklists and other screening tools for cursory compliance
reviews, working with local housing code authorities to help ensure only certified firms are used for
repair and renovation work on pre-1978 housing. As discussed above, to effectively accomplish
these objectives, the CMS establishes that Regions must know the regulated universe to the extent
practicable, and prioritize the environmental problems to be addressed (i.e., focus on hot spots).
For LBP inspections, once the universe is known, the Region should use the targeting principles set
forth in the CMS. Additionally, Regions may wish to focus RRP inspection activities at primary
schools and large child care centers where there is a better chance of obtaining access to the facility
and observe contractors' actual compliance with required work practices because children are
present and the renovation activities may occur over a long period. While at these facilities,
inspectors should also see if there are any opportunities to leverage resources as described in the
CMS.
Regions should:
Respond appropriately to tips and complaints, as described in the CMS; and actively follow-up
on the highest priority action items as determined through an objective triage process such as
described in the CMS.
Target for, and conduct audits at the Region's most active EPA-accredited training provider
programs to assure and promote a high level of compliance across the regulated community
(each Region will determine the appropriate number of audits based on the particulars of that
Region).
Focus efforts in high-priority lead "hot spots" as described in the CMS (e.g., geographical areas
with evidence or indicators of significant or wide-spread EBLLs).
Focus primarily on RRP/PRE compliance. At least 95% of the Region's LBP compliance
efforts should be directed to RRP/PRE, and no more than 5% to new § 1018-only compliance.
The CMS encourages Regions to employ integrated strategies and targeting so that, while
focusing primarily on RRP/PRE, the Region may concomitantly monitor for and enforce
compliance with other LBP rules (the § 1018 and § 402 Abatement rules), as appropriate (e.g.,
the Region may conduct § 1018 inspections in conjunction with RRP/PRE inspections of
property management firms that also conduct property renovations).
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Use a variety of methods to inspect for RRP/PRE compliance: record review inspections for
RRP and PRE; and field work practice for RRP.
"Bundle" press activities related to filing complaints and coordinate with OECA to bundle cases
from multiple Regions as appropriate.
Partner with state and local government code enforcement and building permit programs and
state/local health departments to conduct joint inspections.
In addition, Regions should do the following:
In areas where Regions conduct integrated strategies (as part of the national RRP enforcement
strategy or otherwise), include methods to better target compliance monitoring and enforcement
activities, such as partnering with state and local health departments and health care providers to
identify lead hot spots and individual properties associated with EBLL children.
Work with their LBP programmatic (non-enforcement) offices in the region to encourage states
to seek authorization for the RRP program.
Conduct appropriate oversight of authorized state § 402 and § 406 programs.
Closely investigate the applicability of the LBP regulations to housing at federal facilities.18
All of these considerations should be covered when reporting activities for the Region's TSCA 02
commitment.
b. 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. Additionally OC plans to develop a tool to help all media inspectors 1) screen for
facilities potentially subject to core TSCA requirements when performing their pre-inspection
activities for the facility; and 2) ask a few appropriate questions in the field to help determine the
facilities compliance with TSCA if applicable.
The Regions should:
Focus TSCA compliance activities on chemical manufacturing, distribution, processing, use, or
disposal in emerging technologies and/or use of new chemicals.
18 Many federal agencies maintain housing for both federal employees/dependents, contractors, and/or tenants, and such
housing is subject to the requirements of the LBP regulations, including the LDR. However, consistent with the
Kingsville Naval Air Station decision (March 17, 2000, TSCA Appeal #99-2), FFEO should be consulted for any case
wherein "assignment of quarters" by the Department of Defense (DOD) is involved.
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Increase the use of TSCA subpoenas for investigation of potential noncompliance
Where field activities are conducted (inspections or screening), 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, fractions
and other priority or Action Plan chemicals or targets.
Target existing chemical reporting and record keeping requirements such as TSCA § 8(c), (d)
and (e) and the Chemical Data Reporting Rule.
Bundle the settlement or litigation of multiple TSCA § 4 and nanotechnology cases.
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.
Focus compliance, monitoring and enforcement efforts on the 2011 Chemical Data Reporting
Rule.
c. TSCA Formaldehyde Programs
On July 7, 2010, the Formaldehyde Standards for Composite Wood Products Act was signed into
law. It restricts formaldehyde emissions from composite wood products sold or manufactured in the
U.S. including those imported. These products include hardwood plywood, medium-density
fiberboard, and particle board, as well as goods made from these wood products. The law amends
TSCA by adding Title VI.
The law requires EPA by January 1, 2013, to implement formaldehyde emission standards that
apply to products sold in the United States, based on the rules originally established by the
California Air Resources Board (CARB). In addition to these standards, Title VI requires third-
party testing and certification to ensure that subject products comply with the standards, and it
directs EPA to work with Customs and Border Protection and other relevant federal agencies to
enforce the standards for imported products.
During the first year of implementation, EPA should focus on (1) determining the universe of
composite wood product manufacturers, third-party certifiers (TPCs) and accrediting bodies and (2)
emissions testing compliance by composite wood product manufacturers.
OCSPP is currently planning a database which will store information received from composite
wood product manufacturers. If the database is fully functioning by 2013, the database should be
checked to determine the universe of composite wood product manufacturers.
Information submitted to TPCs by composite wood product manufacturers can be inspected and
checked against information in the database for compliance with the formaldehyde rule.
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Accrediting Bodies can be inspected to determine who the TPCs are and whether the TPCs are
operating in accordance with the rule.
d. TSCA PCB Programs
Many important efforts to protect people from exposure to PCBs are continuing to occur in
programs other than enforcement; for example, in FY 2013, OCSPP regional offices will provide
assistance to schools when requested in assessing the presence of PCBs in caulk, fluorescent light
ballasts and other sources and promote education and outreach efforts on PCBs in schools. These
activities were taken into account in the decision to have a limited national enforcement presence in
this area; EPA will focus on addressing nationally-significant PCB civil and criminal violations that
may present a significant risk to human health or the environment and maintain some field presence
at EPA-approved commercial PCB storage and disposal facilities.19
e. TSCA Asbestos Program/AHERA
Since 1986, when the Asbestos Hazard Emergency Response Act (AHERA) amended TSCA to
require schools to inspect their buildings for asbestos-containing materials and implement asbestos-
management programs, EPA has devoted considerable resources to educating schools about the
risks associated with asbestos and assisting with managing these risks. The success of these efforts
means that EPA is able to reduce its civil and criminal enforcement presence in this area to a limited
90
national presence, with a focus on the most egregious violations of AHERA .
States that have "waiver" status are expected to:
Within a reasonable period of time, investigate and respond appropriately to any
tips/complaints containing allegations that provide a reasonable basis to believe that a
violation has occurred.
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.
Enforce under state law, in states that have "waiver" status.
3. Reset Our Relationships with States and Tribes
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.
19
Note: To meet the agency wide schedule, the final OECA NPM Guidance is being issued now, although we have not
completed discussions on the content and schedule for the budget adjustments portion of the Guidance. Some of the
budget adjustments outlined in this final guidance may be revised as we continue work on implementation plans.
20 See previous footnote.
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The Grants Administration Division issued guidance for the TSCA grants program that 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 focus oversight resources
to the most pressing performance problems in states and should work to demonstrably improve state
performance. OECA and the Regions will use a variety of mechanisms to ensure adequate
oversight, including regular meetings and consultations with states/tribes, grant reviews, oversight
inspections, and enforcement actions.
Regions should provide:
Regional updates on actions and outcomes through discussions with OECA (generally,
through existing channels of communication).
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).
EPA Order 3510 requires that each EPA office which prints and distributes credentials (i.e.
federal credentials issued to state and tribal inspectors to conduct inspections on behalf of
EPA) conduct an annual inventory, including an annual physical possession check of 10% of
the credentials.
Consultation with tribes on the central role that enforcement and compliance plays in EPA's
direct implementation program and oversight of approved tribal programs. Regional direct
implementation in Indian country includes applying the various TSCA compliance
monitoring strategies and enforcement policies and OECA 's Guidance on the Enforcement
Principles Outlined in the 1984 Indian Policy (January 17, 2001). OECA 's Guidance on the
Enforcement Principles Outlined in the 1984 Indian Policy contains procedures for
consultation with federally-recognized tribes in the civil compliance monitoring and
enforcement context and contains threshold criteria for EPA's consideration of enforcement
actions. The threshold criteria are not intended to, and should not result in a lesser degree of
human health and environmental protection in Indian country than elsewhere in the U.S.
The Regions should work with the state/local agencies and tribes to identify priorities and align
resources to implement the above commitments. This includes:
Participating with delegated agencies in the ongoing dialogue at the national level to discuss
what activities may be counted under a compliance monitoring strategy. Traditionally, on-
site compliance evaluations and investigations have been the primary means for undertaking
coverage of the regulated universe. However, as the regulated universe of sources continues
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to expand resulting in a significant challenge to our ability to conduct on-site evaluations,
the Regions and delegated agencies need to use available resources in the most effective
manner.
Regions should focus primarily on state program oversight and capacity-building to ensure
states are appropriately using tools to help ensure compliance, and more importantly,
integrating those tools to help effectively reduce EBLLs and LBP hazards in identified lead
hot spots; support states and tribes on complex or multi-state or multi-tribal compliance
issues; and consult with states and tribes to identify issues that may warrant areas of national
focus.
For TSCA asbestos, Regions should encourage states and tribes to develop their own
regulations and apply for a "waiver" where applicable.
4. Improve Transparency
The Regions should:
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 waivers states, ensure
compliance and enforcement data are provided in aggregate form as part of midyear and end
of year evaluation reports. (Note: This is not applicable to the lead program.)
Enter all federal inspections, including the Inspection Compliance Data Sheet (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 tribal communities, who may lack
access to the internet.
5. Relevant Policies and Guidance
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)
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. However, EPA directly implements FIFRA in Indian country,
including compliance monitoring and enforcement for pesticide use, although Tribes enforce similar
provisions under their own tribal codes through enforcement agreements with EPA. For more
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information on the FIFRA compliance monitoring program, readers are urged to review the FIFRA
Compliance Monitoring Strategy (CMS) which provides detailed information about the FIFRA core
program implementation, targeting, prioritizing and types of inspections, program oversight, and
other aspects of the FIFRA compliance monitoring program, as well as the Joint EPA OPP/OECA
State and Tribal Cooperative Agreement Guidance which directs state and tribal activities to
establish compliance monitoring priorities.
1. Link with Top Office of Pesticide Programs Priorities
OECA's compliance monitoring and enforcement efforts support the FIFRA program priority of a
strong field presence to ensure that the risk mitigation decisions of the Office of Pesticide Programs
result in their intended protections and to reduce pesticide risk. In addition, both OECA and the
Office of Pesticide Programs (OPP) identify Pesticide Occupational Worker Safety as one proposed
regional-specific priority focus area. Effective implementation of EPA's occupational safety
programs is one of OPP's highest priorities, and a key component of OPP's strategy to ensure the
safety of pesticide chemicals, prevent pollution and advance environmental justice and children's
health.
2. Aggressively Go After Pollution Problems That Make a Difference in Communities
EPA protects human health and the environment by ensuring compliance and effectively enforcing
FIFRA regulatory requirements through federal inspections and enforcement. The core program
also protects human health and the environment, including water resources, through support and
oversight of state and tribal monitoring and enforcement of pesticide use/misuse.
EPA will ensure compliance with and effective enforcement of FIFRA regulatory requirements.
The core program should include compliance and enforcement activities covering: protecting
workers, pesticide registration and labeling, data quality requirements21, efficacy and compositional
integrity of hospital disinfectant products, pesticide producing establishment registration and annual
production data reporting, import/export requirements, registrant reporting of unreasonable adverse
effects and compliance monitoring and enforcement of non-compliant pesticides.
In conducting this work, all Regions are expected to participate in Focus Areas A, B and C
discussed on the following pages. States 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.
Focus Area A: FIFRA Imports of Non-compliant Pesticides
EPA's enforcement program addresses the illegal importation of noncompliant pesticide products
into the United States by bringing enforcement actions against importers and others, and working
with other governments, agencies and stakeholders to prevent and reduce risks of unsafe products
21 The FIFRA Good Laboratory Practices Standards Program is a Headquarters only program and an area where OECA
will maintain a limited national presence.
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entering our country. Illegal pesticide imports may present significant human health and
environmental risks and have been linked to poisonings of children and pets, so interception before
they enter the United States is critical.
EPA Regions have been the primary source of inspections and enforcement for this 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 compliance monitoring inspections. EPA
should make their states aware of EPA's strong interest in import compliance and encourage them
to collaborate with EPA when situations warrant.
Currently, the FIFRA compliance monitoring and enforcement program manually reviews FIFRA
Notices of Arrival (NOAs) for pesticide products and devices entering the U.S. and provides
direction and guidance to Customs and Border Protection (CBP) as to whether the pesticide should
be allowed to enter U.S. commerce. The planned transition to an automated processing system in
FY 14 [the Automated Commercial Environment in the International Trade Data System
(ACE/ITDS)] creates opportunities to reduce the investment in manual processing of FIFRA
Notices of Arrival (NOAs) to a limited national presence. The budget adjustment focuses solely on
the processing of NOAs and not other aspects of the import compliance and enforcement program.
Once fully functional, ACE/ITDS will process the majority of NOAs, significantly reducing the
need for manual review and approval by EPA, and allowing EPA to reduce its resources currently
devoted to this work.22
EPA will continue to:
Monitor import compliance through inspections at the designated destination point for the
imported products. Such inspections would be conducted after the imported pesticides have
been released by the CBP and have entered into U.S. commerce. Take physical samples when
appropriate.
Place special emphasis on compliance of pesticides imported into Foreign Trade Zones for
storage, processing or packaging prior to release into U.S. commerce.
Focus on importers with a history of noncompliance or significant importation activity from
countries frequently associated with noncompliant shipments.
Screen for potential discrepancies concerning legitimate sources and countries of origin
identified on the confidential statement of formula for both active ingredients used to produce
registered end-use pesticides and the production of manufacturing-use pesticides, while
reviewing Notices of Arrival (NOAs). Where potential discrepancies are noted, follow-up
investigations may be warranted to further evidence collection, at U.S. registered agents for
foreign producers and domestic producing establishments.
Note: To meet the agency wide schedule, the final OECA NPM Guidance is being issued now, although we have not
completed discussions on the content and schedule for the budget adjustments portion of the Guidance. Some of the
budget adjustments outlined in this final guidance may be revised as we continue work on implementation plans.
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Take enforcement actions, as appropriate, to ensure optimum deterrence effect and enforcement
impact.
Address noncompliance by taking enforcement action against violative import shipments and
then, when appropriate, develop cases that address corporate-wide noncompliant behavior.
Building on the success in addressing non-compliant pesticide products, EPA will continue to work
with CBP's Commercial Targeting and Analysis Center (CBP CTAC) by combining and leveraging
resources to implement national operations strategically focusing on importers with a history of
noncompliance or significant importation activity from countries frequently associated with
noncompliant shipments.
Focus Area B: Supplemental Registrations
Supplemental pesticide registrations are a continued source of concern for regulators across the
country. States, which conduct thousands of marketplace inspections each year, have raised concern
over supplemental or "distributor products" 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. Although required to be consistent with the labels of the basic
registered products, distributor product labels frequently deviate substantially from the EPA
accepted labels. Such unapproved 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. Due to the potential risk associated with the use of improperly labeled pesticides, it is
important that the EPA aggressively pursue compliance for supplemental registrations.
EPA issues supplemental registrations for a wide range of pesticide products in every toxicity
category, including agricultural chemicals, pesticides used for residential pest control, lawn and
garden pesticides, as well as for disinfectants and other antimicrobial products. To address
noncompliance in this focus area, EPA will place emphasis on registrants with a large number of
current supplemental registrations or registrants marketing Tox 1 category distributor products.
EPA will determine distributor product compliance by undertaking a comprehensive review of
product labeling and product chemistry, when appropriate.
Each Region will conduct inspections as appropriate to 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.
States may wish to participate, too, and can be a significant source of information about
noncompliant distributor products.
The EPA should develop enforcement actions to address corporate-wide compliance. Regions
should coordinate with the Office of Civil Enforcement's Waste and Chemical Enforcement
Division and other Regions in developing corporate-wide cases. In addition, Regions should take
enforcement actions, as appropriate, to ensure optimum deterrence and compliance impact.
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Focus Area C: Region-Specific Focus Area Developed in Consultation with States
In FY13, in addition to the focus areas A and B above, Regions will develop a separate focus area
with their State Lead Agencies (SLAs) to address a FIFRA enforcement issue of regional and state
significance. Although SLA and EPA enforcement priorities differ, there are many issues where
EPA and state interests overlap and as such, may be good candidates for an NPM focus area. This
focus area presents a unique opportunity for Regions and states to comprehensively address a
pesticide enforcement problem area. For example, an EPA Region might choose in consultation
with its states to focus on rodenticide products. Under this scenario, states might look a rodenticide
product misuse or pesticide applicator certifications while the Region would look at rodenticide
production and labeling.
The State FIFRA Issues Research Group (SFIREG) conducted a survey of state enforcement
priorities and most common FIFRA violations, and identified several overlapping areas including
pesticide misuse (over application, unlabeled pesticides) and pesticide drift. Additional issues
identified by EPA that may be appropriate for a coordinated enforcement focus area under this
FY13 are listed below.
Fumi gants/Fumigati on
Worker Safety
Retail Marketing
Container/Containment
More detail on each of these areas is provided below. In developing a focus area, the Regions
should consult with the states to identify the states' top enforcement priorities and focus on an
environmental or human health problem that advances both state and federal enforcement programs.
Commitment FIFRA-FED1: Project regional (federal) FIFRA inspections. Each Region should
conduct a minimum often (10) FIFRA inspections. In the Comment Section, provide the number
of federal facility inspections.
Option 1: 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.
The NPM Guidance's fumigants/fumigation focus area is primarily targeted on product regulatory
compliance and use/application compliance for all areas of fumigation including structural
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(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. 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. 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.
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.
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.
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Option 2: 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
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).
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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)
Option 3: 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.
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.
FY2013 OECA NPM Guidance Page 73
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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.
Option 4: 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.
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.
3. Reset Our Relationships with States and Tribes
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 subject to
available resources. Regions may rely upon existing communications with states to meet the
intent of this requirement.
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. In the absence of an appropriate response by a
delegated agency, the Region should take an enforcement action to address serious
FY2013 OECA NPM Guidance Page 74
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violations. 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.
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).
EPA Order 3510 requires that each EPA office which prints and distributes credentials (i.e.
federal credentials issued to state and tribal inspectors to conduct inspections on behalf of
EPA) to conduct an annual inventory including an annual physical possession check of 10%
of the credentials.
Regional direct implementation in Indian country includes applying the various FIFRA
compliance monitoring strategies and enforcement policies and OECA 's Guidance on the
Enforcement Principles Outlined in the 1984 Indian Policy (January 17, 2001). OECA 's
Guidance on the Enforcement Principles Outlined in the 1984 Indian Policy contains
procedures for consultation with federally-recognized tribes in the civil compliance
monitoring and enforcement context and contains threshold criteria for EPA's consideration
of enforcement actions. The threshold criteria are not intended to, and should not, result in a
lesser degree of human health and environmental protection in Indian country than
elsewhere in the U.S.
4. Improve Transparency
OECA intends to modernize and update the FIFRA-TSCA Tracking System/National Compliance
Database (FTTS/NCDB) that contain information on pesticide inspections and enforcement action
by state and tribal grantees, in order to improve data quality and provide more timely data entry and
public access to data. Until a revised and modernized system is in place, Regions are expected to
continue to assure the timely and accurate entry of state and tribal performance data into FTTS and
enter their own federal inspection and enforcement data into ICIS.
5. Relevant Policies and Guidance
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
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FIFRA Enforcement Response Policies:
http://cfpub.epa.gov/compliance/resources/policies/civil/fifra/
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
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
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 way:
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.
FY2013 OECA NPM Guidance Page 76
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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 (ICI), 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 identifying responsible parties at the site
assessment stage where it appears likely that a removal or remedial response will be necessary.
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.
Given budget limitations, EPA is making a modest reduction in the Superfund enforcement
program, at private and federal facility sites. We think these reductions can be achieved while still
maintaining a strong cleanup enforcement program, which is essential to promote the
Administrator's priority of Cleaning Up Our Communities. EPA believes that savings can be
achieved by focusing Superfund enforcement resources on the highest-priority sites and those
enforcement activities that achieve the biggest return on our investment.23
CERCLA's landowner liability protections are designed to be self-implementing, and EPA's
enforcement program has in place a robust set of guidance documents that can assist potential
purchasers and developers of Brownfield sites with questions about liability. Relying more on these
policies as EPA's principal mechanism for clarifying liability allows the EPA enforcement program
to shift some of the resources previously devoted to site-specific Brownfields enforcement work to
traditional enforcement activities necessary to provide protections for the public. We will maintain
a limited national presence to allow us to address liability at a particular site when necessary to
promote redevelopment.24
EPA's Superfund enforcement GPRA goals and performance expectations for FY 2013 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.
23
Note: To meet the agency wide schedule, the final OECA NPM Guidance is being issued now, although we have not
completed discussions on the content and schedule for the budget adjustments portion of the Guidance. Some of the
budget adjustments outlined in this final guidance may be revised as we continue work on implementation plans.
See previous footnote.
FY2013 OECA NPM Guidance Page 77
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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, the following is the 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 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 FY2013 helps establish priorities for EPA's
Federal Facilities enforcement program. EPA has CERCLA Section 120 interagency agreements,
known as Federal Facility Agreements (FFAs), in place at all but two of 173 federal facility NPL
sites. Those agreements govern the cleanups conducted by the facilities and delineate EPA's
oversight of those cleanups. In particular, the FFAs identify procedures for resolving disputes and
ensuring accountability. Regions are expected to use 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 must collaborate to establish
remaining and new agreements.
Superfund federal facilities oversight and enforcement, however, is an area where OECA
anticipates a significant reduction in investment. Given this reduction in Superfund enforcement
resources, EPA must target enforcement to the highest priority sites and to those instances where
the biggest potential return is realized on our enforcement dollars. Further, EPA will work with
OSWER and the Regions on how to better utilize FFAs to make site performance data available to
the public and otherwise empower citizen involvement to enhance cleanup oversight and
accountability. OECA, working with OSWER and the Regions, is developing a plan to implement
the reduction in work, which will address a reduction in the Agency's ability to staff cleanup
disputes and enforce CERCLA FFAs, as well as EPA's interest in greater transparency for the
public at these sites. Since all federal facility enforcement actions are "nationally significant" by
OECA policy and require consultation with Headquarters, this consultation will be even more
important as the Regions contemplate new work in this program.25
Note: To meet the agency wide schedule, the final OECA NPM Guidance is being issued now, although we have not
completed discussions on the content and schedule for the budget adjustments portion of the Guidance. Some of the
budget adjustments outlined in this final guidance may be revised as we continue work on implementation plans.
FY2013 OECA NPM Guidance Page 78
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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 and Tribes
-m, -m, 'Jfl
EPA will be implementing its Community Engagement Initiative designed to enhance
headquarters and regional program engagement with states, tribes, 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, including Tribal communities, who lack access to the internet.
26 Information on the Community Engagement Initiative can be found at
http://www.epa.gov/oswer/docs/cei action plan 12-09.pdf
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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 2013-14 and Regional
Enforcement Priorities
Focusing Enforcement through Case Tiering
Integrating Environmental Justice (EJ) into EPA's criminal enforcement program
investigations
Anticipating tight budgets in FY13 and beyond, EPA is focusing its criminal enforcement resources
on the criminal violations that have the biggest impact on health and the environment. Recognizing
that such cases are often more complex and demanding, and that we will have fewer resources in
total, we expect to cut back on the smaller impact cases that, while important, have less potential for
broader effect. The areas of expected reduced effort include matters on which other agencies have
effective criminal enforcement programs - like the Coast Guard in vessel pollution cases - or where
civil enforcement tools may be effective to redress violations - like stormwater violations. EPA
will retain capacity to address particularly egregious criminal violations in these and other areas
where budget cuts reduce the amount of more routine enforcement we are able to do. CID field
offices will consult with Headquarters before investing in new work in these programs.27
Case Tiering. During FY 2013, 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 is both a GPRA measure and a key national priority
of the criminal enforcement program. 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., significant organizational and/or repeat violators), and
4) Strategic Case Factors (e.g., program-wide threats to an environmental protection regime,
potential links to broader criminal networks).
Based on these factors, all cases are "tiered" with Tier 1 cases being the most important. Any case
involving death or actual serious injury is automatically a Tier 1 case. 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).
Note: To meet the agency wide schedule, the final OECA NPM Guidance is being issued now, although we have not
completed discussions on the content and schedule for the budget adjustments portion of the Guidance. Some of the
budget adjustments outlined in this final guidance may be revised as we continue work on implementation plans.
FY2013 OECA NPM Guidance Page 80
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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 has issued a policy on integrating environmental justice concerns in
assessments of criminal investigations, and will use EPA's screening tools and regional input along
with other relevant information when tiering criminal cases. OCEFT has modified its Criminal
Case Reporting System (CCRS) to track an EJ screening score, a text entry section for recording
additional input and a final EJ determination selection when investigating environmental crimes.
Cases considered to have potential EJ concerns for criminal enforcement purposes meet the
threshold level for a heightened analysis. The criminal enforcement program will then meet with
the regional EJ coordinator to obtain additional information supporting why the case has potential
EJ concerns.
The program will also continue to work with tribal law enforcement organizations to strengthen the
effectiveness of environmental enforcement in Indian country.
2. Link with Critical Program Office Priorities
EPA's enforcement program relies on criminal and civil program coordination at a strategic level,
and - in parallel proceedings - on a case-specific basis, to bring to bear the most appropriate
enforcement tools to protect human health and the environment.
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.
3. Strengthen Relationships with Law Enforcement Partners That Support State and
Tribal 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).
4. Improve Transparency
The criminal enforcement program will:
FY2013 OECA NPM Guidance Page 81
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Publicize EPA's criminal enforcement efforts and successes to deter other potential
violators.
Continue to encourage the public's reporting of potential violations and to provide leads
through the fugitive web site.
Ensure that the public can access information about completed criminal prosecutions
through the Summary of Criminal Prosecutions.
Work with OECA's Office of Compliance to incorporate criminal enforcement information
into EPA's State Review Framework.
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 2013 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 2020 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., 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).
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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 and Section 309 of the Clean Air Act 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 70 percent of significant impacts identified by EPA during the NEPA review of all
major proposed federal actions will be mitigated. (GPRA measure)
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.
Promoting Environmental Justice considerations throughout the environmental decision-making
process and encouraging public involvement early in the process to maximize transparency.
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 OFA, 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.
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. The
EPA and the public rely on EPCRA for information on chemical releases entering the environment,
and on the storage of chemicals at facilities. The 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. The EPA must ensure
that companies report accurately and within required time frames. 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 and never-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 2013 to address the following categories of concern as
resources allow:
Twenty potential non-reporters (facilities that report in one year but fail to report
the following year)
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)
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)
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OECA may provide additional targeting as part of an initiative focused on
communities, chemicals, sectors of concern or new regulations. Some new TRI
regulations are expected to be finalized in FY 2012.
o Resolve Notices of Significant Errors (NOSEs) for enforcement targets developed by
OECA with assistance from OEI for reporting years 2007 to the present for using invalid
forms, missing signatures, invalid id and invalid chemical name, no data in section 7 and
other significant errors that prevent entry of data. Electronic reporting will eliminate
future NOSEs. This would be accomplished by issuing a Notice of Noncompliance. If
the facility still does not comply, a complaint should be issued.
o Resolve the outstanding TRI MEWeb Noncertifiers for reporting year 2010 with a
Notice of Noncompliance. If the facility still fails to certify, a complaint should be
issued for failure to file, if appropriate, and as regional resources allow.
Track and prioritize tips and complaints and follow-up, as needed.
Any inspections (or other agreed upon compliance monitoring activities pursuant to the
national dialogue on EPCRA 313 compliance monitoring) resulting from any of these
targeting efforts will count towards the Region's overall commitments for inspections (or
other agreed upon compliance monitoring activities pursuant to the national dialogue on
EPCRA 313 compliance monitoring).
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.
Respond to OECA's requests for reviewing draft TRI regulations for enforceability, the
revised draft section 313 enforcement response and penalty policy, and any other documents
or proposed actions where OECA requests regional input on enforcement matters.
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
(or other agreed upon compliance monitoring activities pursuant to the national dialogue on EPCRA
313 compliance monitoring).
COMMITMENT EPCRA 02: Conduct at least twenty (20) EPCRA 313 non-reporter inspections
(or other agreed upon compliance monitoring activities pursuant to the national dialogue on EPCRA
313 compliance monitoring).
FY2013 OECA NPM Guidance Page 85
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B. EPCRA 311/312
EPCRA sections 311 and 312 will continue to require facilities to develop or have available
Material Safety Data Sheets and to provide annual reports on a facility's chemical inventory directly
to state and local emergency response entities. The statute authorizes citizen suits, and civil suits by
state or local governments against owners or operators of a facility for failure to comply with
specific EPCRA provisions. Regarding federal enforcement, EPA will maintain a limited national
presence but focus resources on the highest priority violations and be available to respond to
significant enforcement issues (e.g. violations that create significant risks to communities, workers
and first responders or state or tribal requests for federal action against recalcitrant facilities).
Furthermore, EPA will leverage Agency-wide resources, as appropriate, to address this program.
National Program Guidance from OSWER and OECA indicates that Risk Management Plan
inspections conducted at high risk facilities should also include an evaluation of the facility's
compliance with EPCRA sections 304 and 311/312.28
C. CERCLA 103 and EPCRA 304
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 section 304 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.
Evaluate certain continuous release submissions for accuracy and compliance and take
appropriate enforcement actions for non-compliance.
3. Reset Our Relationships with States and Tribes
The Regions should continue coordinating with states and tribes.
4. Improve Transparency
The Regions should:
Enter all federal enforcement cases into national databases.
Note: To meet the agency wide schedule, the final OECA NPM Guidance is being issued now, although we have not
completed discussions on the content and schedule for the budget adjustments portion of the Guidance. Some of the
budget adjustments outlined in this final guidance may be revised as we continue work on implementation plans.
FY2013 OECA NPM Guidance Page 86
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Enter all federal civil judicial consent decrees into ICIS.
5. Relevant Policies and Guidance
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
D. 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. Further, EPA holds these federal agencies accountable to the same
standard of environmental compliance as other members of the regulatory community. This equal
accountability is specifically required by CERCLA, envisioned by most other statutes and affirmed
under Presidential executive order. In addition, federal agencies are now expected to go beyond
compliance and serve as an example to others regarding environmental stewardship and
management, as Presidential Executive Order No. 13514 on federal environmental sustainability
makes clear. EPA's federal facilities enforcement and compliance programs are at
http://www.epa.gov/enforcement/federalfacilities/index.html
Given limited EPA resources, the Agency's primary focus in this sector has increasingly been on
monitoring and enforcement, given stewardship opportunities and reliable compliance assistance
offered by others, especially at FedCenter, the sector's on-line environmental stewardship and
compliance assistance center sponsored by more than a dozen federal agencies. 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 other green compliance
initiatives associated with Executive Order 13514. See http://www.fedcenter.gov/
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 all National Enforcement Initiative
areas, as well as Regional priorities, national initiatives targeted at geographic areas, EJ areas and
federal facilities Integrated Strategies areas. FFEO and the Regional Federal Facility Program
Managers also annually negotiate Integrated Strategies as part of the National Federal Facilities
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 2013, Regions are expected to continue to implement Integrated
Strategies dealing with storm water, federal underground storage tanks, RCRA corrective action
sites and vulnerable communities. FFEO and the Regions will also continue to pursue exploratory
integrated strategy areas in FY 2013. These areas focus on enforcement actions at Government
FY2013 OECA NPM Guidance Page 87
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Owned/Contractor Operated/Government Owned/Privately Operated (GOCO/GOPO) facilities,
HCFCs/CFCs enforcement and inspections associated with the disposal of unneeded federal real
estate. Inspections in these areas, as well as energy extraction enforcement activities on federal
lands, qualify for credit under this commitment.
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. Regions and FFEO are expected to continue to implement a 2011 enforcement
settlement with the Department of the Interior's (DOI's) Indian Affairs program for violations at its
schools and water treatment plants across Indian country. In addition, FFEO will complete new
inspection targeting capabilities for improved monitoring of vulnerable communities associated
with federal facilities.
In order to protect people from exposure to hazardous chemicals, Regions are expected to sustain a
vigorous inspection and enforcement program at federal facilities, especially focused on National
Enforcement Initiatives, Integrated Strategy areas and Regional priorities. Underground Storage
Tanks, PCBs and AHERA/asbestos, are all areas where OECA will need to reduce its work as
discussed in previous sections of the guidance. The Regions are supposed to consult Headquarters
before initiating any new work in these areas.29
FFEO strongly encourages the Regions to take appropriate and timely enforcement actions to
improve compliance at federal facilities. For FY 2013, federal facility resources should give first
priority to taking such actions, as defined within relevant media-specific policies, for each federal
facility inspected as a consequence of Integrated Strategies efforts. Where appropriate, FFEO
advocates including environmental management system (EMS) improvements and SEPs as part of
enforcement action settlements. Further, FFEO recommends that the Regions promote greater
public awareness and consider greater public engagement through increased transparency of federal
facility compliance activity and enforcement actions, which should serve to leverage our own
oversight activities across affected communities.
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 2013. The projections should not include
Records of Decision at federal facility CERCLA sites. 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 2n fiscal quarter. Since these projections are outside the ACS system, they are not
commitments by the Regions.
29
Note: Please see the UST, asbestos and PCB sections of the NPMG for details related to these program areas. To
meet the agency wide schedule, the final OECA NPM Guidance is being issued now, although we have not completed
discussions on the content and schedule for the budget adjustments portion of the Guidance. Some of the budget
adjustments outlined in this final guidance may be revised as we continue work on implementation plans.
FY2013 OECA NPM Guidance Page 88
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Cleanup at Hazardous Sites
Please note the reference at Section V.D, earlier in this Guidance, to OSWER's NPMG which
establishes priorities for EPA's Federal Facilities CERCLA Enforcement program. OECA, working
with OSWER and the Regions, is developing a plan to implement the reduction in work, which will
address a reduction in the Agency's ability to staff cleanup disputes and enforce CERCLA Federal
Facility Agreements (FFAs). Since all federal facility enforcement actions are "nationally
significant" by OECA policy and require consultation with Headquarters, this consultation will be
even more important as the Regions contemplate new work in this program.30
COMMITMENT FED-FAC05: Each Region must conduct ten (10) federal facilities inspections
primarily to support national Integrated Strategy areas, which include stormwater, federal
underground storage tanks (UST), RCRA corrective action sites, vulnerable communities and
inspections associated with the disposal of unneeded federal real estate. Three exploratory
categories from FY 2012 inspections at Government Owned/Contractor Operated/Government
Owned/Privately Operated (GOCO/GOPO) facilities, for HCFCs/CFCs at federal installations and
related to energy extraction on federal lands - will also count. These 10 inspection commitments
can be achieved through any combination of single media or multimedia inspections, with the
following limitations: (1) a maximum of two UST inspections can count toward this goal; (2) a
maximum of four vulnerable community inspections can count toward this goal; and (3) for any
multimedia inspection conducted, it shall count as up to four inspections toward this goal if up to
four of the individual inspections support the Integrated Strategies and/or official Regionally-
designated priorities. Further, (4) up to four official Regionally-designated priorities can count
toward the commitment, if the Region determines that inspections up to that number are more
desirable than the same number of Integrated Strategy inspections in the Region. Finally, all of
these inspections may simultaneously satisfy inspection commitments required in any National
Enforcement Initiative or other core program area.
2. Reset Our Relationships with States and Tribes
Regions should continue to work with States to ensure adequate coverage of the federal facility
sector through compliance monitoring and enforcement activity. One way the Regions may work
with States is to coordinate inspections or enforcement activity where appropriate and to be a
resource when questions of enforcement authorities arise, including questions of sovereign
immunity. When questions arise, the Regions and States should keep in mind that federal agencies
have an obligation to comply with environmental laws. Executive Order 12088 states that, "The
head of each Executive agency is responsible for ensuring that all necessary actions are taken for
the prevention, control, and abatement of environmental pollution with respect to Federal facilities
and activities under the control of the agency."
3. Improve Transparency
Note: To meet the agency wide schedule, the final OECA NPM Guidance is being issued now, although we have not
completed discussions on the content and schedule for the budget adjustments portion of the Guidance. Some of the
budget adjustments outlined in this final guidance may be revised as we continue work on implementation plans.
FY2013 OECA NPM Guidance Page 89
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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 seek opportunities for legislative change, when
appropriate, to ensure federal agency environmental accountability under federal laws.
E. State Review Framework (SRF) Expectations
In FY 2013, Regions are asked to support the SRF in the following ways:
Develop a plan for completing all Round 3 Reviews by the end of FY 2016, generally
completing at least 1 state per year, and submit the plan by October 30, 2012.
Conduct all Round 3 SRF reviews of state CAA, CWA, and RCRA enforcement programs
scheduled for FY 2013.
Conduct all CWA reviews using the integrated CWA-NPDES program oversight process
(permit and enforcement reviews).
Draft integrated reports for the CWA portion of the reviews following HQ guidance.
Use data verification and annual data metric analysis to inform regular discussions with
states and to track performance.
Review MO As as part of the CWA-NPDES review process in light of the OW/OECA
criteria for MOA review and checklist to be developed by the end of FY 2012. Ensure that
MO As are updated as needed by the end of FY 2017.
Follow the Round 3 SRF process and guidance and use Round 3 templates.
Ensure commitments to implement recommendations for program improvements are
captured in appropriate negotiated PPAs, PPGs, or categorical grant agreements between the
Region and state, with accountability for carrying out those commitments.
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, including data metric analyses, file reviews,
recommendations, state comments, and benefits arising from SRF reviews, into the Lotus
Notes SRF Tracker database upon completion of the review.
Monitor progress of states and tribes in carrying out the recommendations of SRF Rounds 1
and 2, and record progress quarterly in the SRF Tracker.
Use results of SRF reviews to inform annual planning and regular progress meetings with
states. Where progress toward resolving SRF recommendations is not being made, Regions
should escalate their responses.
COMMITMENT SRF01: Develop a plan to complete all Round 3 state reviews by the end of FY
2016 and submit it to OC by October 30, 2012. Before the plan is due, OC and OWM will have a
discussion with each Region about their plan. Subsequently, OC and OWM will hold annual
discussions with Regions to establish whether any modifications to the schedules are necessary.
Identify the states where Round 3 reviews will be conducted in FY 2013. Conduct all Round 3 SRF
reviews of state CAA, CWA, and RCRA enforcement programs scheduled for FY 2013. Conduct
all CWA reviews using the integrated CWA-NPDES program oversight process (permit and
enforcement reviews). Review existing MO As as part of the CWA-NPDES review process in light
FY2013 OECA NPM Guidance Page 90
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of the OW/OECA criteria for MOA review and checklist to be developed in FY 2012. Ensure that
MO As are updated as needed.
SRF guidance, policies, and templates for reporting are found at http://www.epa-
oti s. gov/srf/srf tracking, html.
SECTION IX. FY 2013 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 and 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 2012 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.
NPMs will initiate the commitment process in the system by entering a value in the "Proposed Bid"
field for each commitment measure by May 25, 2012. Current schedules call for Regions to enter
their draft targets into the annual commitment system by July 6, 2012. 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. NPMs and Regions should reach agreement in ACS on FY 2013 performance
commitments by October 19, 2012 and notify the Office of the Chief Financial Officer (OCFO) of
any outstanding issues for dispute resolution by October 26, 2012. All commitments should be final
by November 16,2012.
B. FTE Resource Charts
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The Regions should complete FTE charts which 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 due to increased interest from the Office of Management and Budget, the
Inspector General, and Congress. As in past planning cycles, Regions will receive FTE templates.
Regions should submit these completed documents to Michele McKeever on September 30, 2012.
2012 Final - Enter the Region's final FTE allocation for FY2012 in the 2012 Final column.
2013 Proposed - Enter the Region's proposed FTE allocation for FY2012 in the 2013
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.
FY2013 OECA NPM Guidance Page 92
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ENVIRONMENTAL PROTECTION AGENCY
Office of Enforcement and Compliance Assurance
FY 2013 NPM GUIDANCE MEASURES APPENDIX
G/O/S*
5
5
5
ACS
Code
EJ01
CAA04
CAA06
Measure Text
HQ will analyze FY12 EJSEAT data to consider developing
a baseline for a budget measure related to case initiations in
areas with EJ concerns.
The number of compliance evaluations (or other agreed upon
compliance monitoring activities pursuant to the national
dialogue on CAA compliance monitoring) 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, tribal and local 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
Non-
Commitment
Indicator
(Y/N)
N
N
N
State
Performance
Measure
(Y/N)
N
N
N
Planning Target1
N
N
N
National Target (FY
2013 Pres. Bud)
N
N
N
See measures text for each ACS commitment for specific expectations.
-------
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 or alternative activities (pursuant to the CAA
CMS national dialogue), this commitment should reflect the
alternative plan. [Note: Break out evaluation and activity
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,
tribal or local agency compliance monitoring air resources
will be redirected and the rationale for making the change.
CWA07
By December 31, 2012, provide to Headquarters a specific
NPDES Compliance Monitoring Strategy (CMS) plan for
each authorized state in the Region, targeting the most
significant sources with potential to impact water quality.
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 flexibilities in
the 2007 NPDES CMS policy and any amendments or
further guidance as a result of the national dialogue on
expanding the range of activities to be counted as compliance
monitoring under the NPDES CMS. At the end of the 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 EPA Regions and state associations to
develop formats for releasing inspection data on CMS
implementation performance on a state-by-state basis.
N
N
N
N
SDWA02
During FY 2013, 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 2012 ETT
N
N
N
N
-------
report. State, territory and tribal breakouts shall be indicated
in the comment field of the Annual Commitment System.
RCRA01
Project by state, and Indian Country where applicable, the
number of operating non-governmental TSDFs, to be
inspected by the Region during the year. 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 evaluating compliance with 40 CFR Parts
264/265 Subpart H should be included as part of the
inspection of each TSDF (although such evaluations do not
have to occur at the same time nor be conducted by the same
people who conduct the field inspections). If a Region
determines that there are unique circumstances in the Region
or with a particular TSDF, the Region may contact
Headquarters to discuss undertaking a detailed evaluation of
compliance with 40 CFR Parts 264/265 Subpart H at another
TSDF.
N
N
N
N
RCRA01.
Project by state the number of operating TSDFs to be
inspected by the state during the year.
Note: Only one inspection per facility counts towards this
coverage measure. The RCRA CMS establishes minimum
annual inspection expectations for TSDFs: The inspections
for RCRA01 and RCRAOl.s should be CEIs. CEIs include
evaluating compliance with the financial assurance
requirements, 40 CFR Parts 264/265 Subpart H. 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).
N
N
N
N
-------
RCRA03
Inspect each operating TSDF operated by states, local, or
Tribal governments.
N
N
N
N
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.
Regions should select at least 2 of the Region's total LQG
inspections at facilities described in the high priority section
as areas of emerging environmental concern. Regions may
work with OECA to coordinate these inspections, including
whether the inspection will be conducted at a TSDF or LQG.
In the Comment Section, provide the number of federal
facility LQG inspections.
N
N
N
N
RCRA02.
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.
N
N
N
N
OSRE-04
Regions must commit to inspect at least one (1) RCRA
corrective action financial assurance instrument per state,
with at least 50% being financial test or corporate guarantee
reviews. Where the submission is noncompliant, take
appropriate enforcement action to address noncompliance
(e.g., notice of violation). Or, where appropriate, work with
the state to ensure appropriate action is taken to address
noncompliance. If possible, return facility to compliance by
end of fiscal year.
N
N
N
N
-------
TSCA01
Project the total number of FY2013 TSCA inspections. In
the comment field of the Annual Commitment System
(ACS), the Region shall break out the number of projected
inspections by TSCA program area (LBP, New and Existing
Chemicals, formaldehyde,). Note: For the reasons discussed
in the executive summary, the LBP component of this TSCA
ACS commitment (TSCA 01) will serve as OECA 's FY 2013
measure of compliance work being done to protect children's
health.
N
N
N
N
TSCA02
Report other compliance monitoring activities at the end of
the year; and break-out the description of other such
activities by TSCA program area. (See the CMS and the
future outcomes of the compliance monitoring national
dialogue for more details).
N
N
N
N
FIFRA-
FED1
Project regional (federal) FIFRA inspections. Each Region
should conduct a minimum often (10) FIFRA inspections.
In the Comment Section, provide the number of federal
facility inspections.
N
N
N
N
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.
N
N
N
N
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.
N
N
N
N
HQ-VOL
Volume of Contaminated Media Addressed (VCMA). As
part of the Goal 5 sub-objective, Support Cleaning up Our
Communities, the following is the GPRA target:
By 2015, obtain commitments to clean up 1.5 billion cubic
N
N
Y
(See narrative.)
N
-------
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 GPRA target is a national target and regions
are not required to post commitments in ACS.
EPCRA
01
Conduct at least four (4) EPCRA 313 data quality
inspections (or other agreed upon compliance monitoring
activities pursuant to the national dialogue on EPCRA 313
compliance monitoring).
N
N
N
N
EPCRA
02
Conduct at least twenty (20) EPCRA 313 non-reporter
inspections (or other agreed upon compliance monitoring
activities pursuant to the national dialogue on EPCRA 313
compliance monitoring).
N
N
N
N
FED-
FAC05
Each Region must conduct ten (10) federal facilities
inspections primarily to support national Integrated Strategy
areas, which include stormwater, federal underground
storage tanks (UST), RCRA corrective action sites,
vulnerable communities and inspections associated with the
disposal of unneeded federal real estate. Three exploratory
categories from FY 2012 - inspections at Government
Owned/Contractor Operated/Government Owned/Privately
Operated (GOCO/GOPO) facilities, for HCFCs/CFCs at
federal installations and related to energy extraction on
federal lands - will also count. These 10 inspection
commitments can be achieved through any combination of
single media or multimedia inspections, with the following
limitations: (1) a maximum of two UST inspections can
count toward this goal; (2) a maximum of four vulnerable
community inspections can count toward this goal; and (3)
for any multimedia inspection conducted, it shall count as up
to four inspections toward this goal if up to four of the
individual inspections support the Integrated Strategies
N
N
N
N
-------
and/or official Regionally-designated priorities. Further, (4)
up to four official Regionally-de signaled priorities can count
toward the commitment, if the Region determines that
inspections up to that number are more desirable than the
same number of Integrated Strategy inspections in the
Region. Finally, all of these inspections may simultaneously
satisfy inspection commitments required in any National
Enforcement Initiative or other core program area.
SRF01
Develop a plan to complete all Round 3 state reviews by the
end of FY 2016 and submit it to OC by October 30, 2012.
Before the plan is due, OC and OWM will have a discussion
with each Region about their plan. Subsequently, OC and
OWM will hold annual discussions with Regions to establish
whether any modifications to the schedules are necessary.
Identify the states where Round 3 reviews will be conducted
in FY 2013. Conduct all Round 3 SRF reviews of state CAA,
CWA, and RCRA enforcement programs scheduled for FY
2013. Conduct all CWA reviews using the integrated CWA-
NPDES program oversight process (permit and enforcement
reviews). Review existing MO As as part of the CWA-
NPDES review process in light of the OW/OECA criteria for
MO A review and checklist to be developed in FY 2012.
Ensure that MO As are updated as needed.
N
N
N
N
*Goal/ Objective/ Sub-Heading
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Explanation of Changes between FY 2012 and FY 2013 NPM Guidance
Office of Enforcement and Compliance Assurance
Instructions
Change from FY 2011 Guidance Document
Briefly describe the significant changes from the FY 2012 guidance and
specify whether it is a deletion, addition, or modification. Changes to
measures may be grouped.
Template
Reason for Change
Provide the reason for the change and indicate whether
the change is in response to an Agency initiative,
internal process or comment on the draft guidance
(e.g., budget decisions, .Administrator'spriorities,
regulation, initiative, result of measures review, etc.).
Location of Information
Identify where in the document the
new or modified information can be
found (by page number and section).
Change from FY 2012 Guidance Document
Reason for Change
Affected Pages and Sections
Priorities
Changes to priorities and strategies are inter-
related in certain instances. To avoid unnecessary
repetition, please see strategy changes highlighted
below.
See below.
Strategies
Next Generation Compliance: OECA has
identified a critical new investment area aimed
at instituting next generation compliance practices
to build 21st century technical capabilities and
efficiencies in assuring compliance. OECA and
the Regions are supporting the Agency's Next
Generation Compliance by promoting electronic
monitoring and reporting to improve targeting and
transparency and advancing new monitoring
technologies to identify violations impacting
public health and harming the environment. For
consent decrees that include a requirement to
conduct a performance test(s), Regions should
seek having electronic copies of required
performance test reports submitted to the Agency
through the Electronic Reporting Tool (ERT)
This is consistent with EPA's desire to better
address large regulated universes with
approaches that go beyond traditional inspection
and enforcement activities.
See page 13.
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when feasible.
Clean Water Act Action Plan: OECA, together
with EPA regions, states and tribes with program
delegation, and the Office of Water, continues to
implement the CWA Action Plan ("the Action
Plan") issued in October 2009. Pursuant to the
Action Decision Document, issued in May 2011,
EPA is making four fundamental changes to
revamp the NPDES permitting, compliance and
enforcement program to better address today's
serious water quality problems.
The proposed changes take into account work
already accomplished and continuing
improvements to better address today's water
quality problems.
See pages 34-36.
Integrated Municipal Stormwater and
Wastewater Planning Approach:
EPA engaged stakeholders to develop and
implement an Integrated Municipal Stormwater
and Wastewater Planning Approach Framework
to address municipalities' numerous CWA
obligations.
This approach will allow municipalities to
prioritize and sequence CWA requirements in a
manner that addresses the most pressing public
health and environmental protection issues first,
while maintaining existing regulatory standards
that protect public health and water quality. All
or part of an integrated plan may be
incorporated into the remedy of enforcement
actions and/or into NPDES permits. After the
details of the development and implementation
of this Approach are finalized, OECA will
decide what modifications to the National
Municipal Enforcement Initiative are necessary
to promote and implement it. More detail about
the changes and their implications will be made
available soon in follow-up to a series of
integrated planning workshops held with states,
local governments and environmental groups.
See page 16.
Inspector Credentials: In FY 2013, regions will
be required to re-credential many of their federal
inspectors.
EPA Order 3510 requires that each EPA office
which prints and distributes credentials (i.e.
federal credentials issued to state and tribal
See pages 16, 29, 45, 48, 53, 65,
75.
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inspectors to conduct inspections on EPA's
behalf) must conduct an annual inventory
including an annual physical possession check
of 10% of the credentials. OECA will work the
regions to establish a schedule and necessary
steps for the re-credentialing of inspectors.
Compliance Monitoring National Dialogue:
OECA will be holding a national dialogue on how
to expand the range of compliance monitoring
activities to be credited under media Compliance
Monitoring Strategies (CMS).
This is necessary as the regulated universe
continues to grow while federal and state
resources become scarcer. Traditionally, on-site
compliance inspections and investigations have
been the primary means for providing coverage
of the regulated universe. There are many
additional activities regulatory agencies do to
monitor facility-level compliance that can and
should be considered along with inspections and
investigations as contributing to our coverage
goals. EPA Regions, states and tribes will be
invited to participate in this national dialogue in
2012, and should be ready to implement the
outcome of this discussion in 2013.
See page 17.
Budget Challenges for FY 2013: Our top
priority is ensuring that we address the most
important violations posing a threat to public
health or the environment. It is also essential that
we invest in new ways to improve the
effectiveness of our work, such as monitoring,
electronic reporting, and innovative enforcement
approaches. Maintaining or even increasing our
investment in these top priorities during lean
budget times requires us to make difficult choices,
and to work in partnership with States and Tribes
to ensure that limited funds are focused on those
compliance and enforcement initiatives that will
deliver the greatest benefit to people's health.
Maintaining or even increasing our investment
in these top priorities during lean budget times
requires us to make difficult choices, and to
work in partnership with States and Tribes to
ensure that limited funds are focused on those
compliance and enforcement initiatives that will
deliver the greatest benefit to people's health.
See pages 13-14, 31-33, 40, 49,
54, 64, 68, 77, 80 and 86.
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In order to ramp up work on these priorities in a
time of declining budgets, we necessarily will
have to cut back in other areas in FY13. In some
cases, progress made in the past allows for
reduced effort today. In other programs, new
electronic tools make it possible to do more with
less, or we can set a higher threshold for taking
federal enforcement. In some cases, we will, out
of necessity, need to consider scaling back on
important work. However, in every case we will
retain our capacity to address the most serious
national problems, and will also continue to
respond to the most egregious cases using
criminal enforcement authorities, where that is
appropriate.
Although all NPM Guidance documents are being
finalized today (per the Agency's annual
schedule), we are still are in the process of
discussing the content and schedule for the budget
adjustments portion of the Guidance. With the
participation of all the Regions and OECA
Offices, we are thinking through the issues
associated with implementation of these
reductions, and considering the input from States
and Tribes. Discussions of the budget adjustment
plans will continue for the next several months.
Some changes to the February 10, 2012 proposed
OECA NPM Guidance have already been made,
based on early comments from the States and
Regions. For example, due to state concerns, we
have decided to retain at least a limited national
presence in all of the adjustment areas and are no
longer proposing to completely disinvest in any
programs. Some of the budget adjustments
outlined in this final guidance may be further
revised as we continue work on implementation
plans.
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So that we can transition to the changed profile
given budget adjustments, this guidance requests
that Regions not initiate new work (e.g.,
inspections) in the areas under consideration for
reduction, without prior consultation with senior
managers in Headquarters. There will be more
discussion on the consultation process before
FY2013. Given the importance of compliance
monitoring and enforcement work, it will be
critical to maintain travel funds for those
purposes, and to scale back on other types of
travel instead where Regional travel funds are
limited.
Environmental Information Exchange
Network: The NPM guidance provides updated
information on the Environmental Information
Exchange Network. It also invites the provision
of examples to the Electronic Reporting Task
Force of experiences in moving from paper to
electronic reporting.
To reduce burden, improve compliance, expand
the information available to the public about
pollution that affects them, and improve the
ability of EPA, states and tribes to implement
environmental programs, the Agency has
commenced a comprehensive initiative to
convert from paper reporting to electronic
reporting. The NPM guidance discusses the
focus of this initiative in two main areas. The
Agency is also interested in learning from states
and tribes about successes and challenges in
converting from paper reporting to electronic. If
a state or tribe would like to share information
with the Electronic Reporting Task Force,
please contact David Hindin (OECA) and Andy
Battin (OEI) for more information.
See pages 35 and 41.
Environmental Justice (EJ):
Expanded narrative addressing children's health
and screening of civil and criminal enforcement
cases for EJ concerns.
The narrative was expanded to further address
children's health. Also, the narrative addresses
OECA's evaluation and post-pilot
implementation of the Technical Directive:
Reviewing EPA Enforcement Cases for
Potential Environmental Justice Concerns and
See pages 18 -22.
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Reporting Findings to the ICISData System.
Toxic Substance Control Act (TSCA)
Compliance Monitoring Strategy: Starting in
FY2013, the One TSCA approach includes
activities in each TSCA focus area not subject to
FY 2013 disinvestment.
One-TSCA means that each Region is expected
to use all available compliance monitoring
capabilities (within all relevant offices in the
Region, at Headquarters, and among
participating states) to address the Region's
most significant TSCA challenges, while
sustaining essential capacity in all of its TSCA
program areas not subject to disinvestment.
See page 15.
EPA Direct Implementation in Indian
Country: Regional direct implementation in
Indian country includes applying the various
compliance monitoring strategies and
enforcement policies, and OECA 's Guidance on
the Enforcement Principles Outlined in the 1984
Indian Policy (January 17, 2001). OECA 's
Guidance on the Enforcement Principles Outlined
in the 1984 Indian Policy contains procedures for
consultation with federally-recognized tribes in
the civil compliance monitoring and enforcement
context and contains threshold criteria for EPA's
consideration of enforcement actions. The
threshold criteria are not intended to, and should
not, result in a lesser degree of human health and
environmental protection in Indian country than
elsewhere in the U.S.
What is described is not a change in approach
from FY 2012. However, OECA thought it was
important to note in the NPM Guidance that
EPA regional direct implementation in Indian
country includes applying the various
compliance monitoring and enforcement
policies.
See pages 30, 44, 56, 65 and 75.
CAA Section:
Updates to activities for regions, states, tribes and
local agencies.
Necessary changes to reflect focus of FY 2013
activities, including national dialogue on
compliance monitoring and support of next
generation compliance activities.
See pages 25-33.
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CWA Section:
Updates to activities for regions and states.
SDWA Section:
Updates to activities for regions and states.
RCRA Section:
Updates to activities for regions and states.
TSCA Section:
Updates to activities for regions and states.
FIFRA Section:
Updates to activities for regions, states, tribes.
CERCLA:
Updates to activities for regions.
Criminal Enforcement
Federal Activities
EPCRA 313 Section:
Updates to activities for regions.
EPCRA 311/312 Section:
Updates to activities for regions.
CERCLA 103 and EPCRA 304 Section:
Updates to activities for regions.
Necessary changes to reflect focus of FY 2013
activities, including but not limited to preparing
for implementation of proposed NPDES
electronic reporting rule.
Necessary changes to reflect focus of FY 2013
activities.
Necessary changes to reflect focus of FY 2013
activities.
Necessary changes to reflect focus of FY 2013
activities.
Necessary changes to reflect focus of FY 2013
activities.
Necessary changes to reflect focus of FY 2013
activities.
Necessary changes to reflect focus of FY 2013
activities.
Necessary changes to reflect focus of FY 2013
activities.
Necessary changes to reflect focus of FY 2013
activities.
Reflects change in focus for EPCRA 3 1 1/3 12
program.
Necessary changes to reflect focus of FY 2013
activities.
See pages 34-45.
See pages 45-49.
See pages 50-57.
See pages 57-66.
See pages 66-76.
See pages 76-79.
See pages 80-82.
See pages 82-83.
See pages 84-85.
See page 86.
See page 86.
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Federal Facilities Section:
Updates to activities for regions.
Necessary changes to reflect focus of FY 2013
activities.
See pages 87-89.
State Review Framework:
Updates to activities for regions.
Necessary changes to reflect focus of FY 2013
activities.
See page 90.
Annual
Commitment
Measures
CAA 07: Deleted commitment CAA 07 which
appeared in OECA's final FY 2012 NPMG but
was subsequently discontinued in follow-up to
discussions with regions. This addressed the
reporting of Minimum Data Requirements
(MDRs) in the national data system AFS.
The regions are still working to ensure the entry
of 100% of MDRs in AFS. The importance of
this activity has not changed. But this is part of
the core program and it was deemed
unnecessary to have an ACS measure.
Deleted from page 31.
RCRA 04 Subtitle C Program: Deleted
commitment RCRA 04 for financial assurance.
However, the NPM Guidance emphasizes that
financial assurance compliance evaluations
should be part of any Compliance Evaluation
Inspection.
Financial responsibility was an OECA National
Enforcement Priority from 2005-2010. In FY
11 and FY 12, OECA used an ACS commitment
to ensure continued focus on financial assurance
compliance monitoring as it transitioned from a
priority back to a core program function.
OECA believes that transition is now
successfully complete and does not see a
continued need for RCRA04.
Deleted from page 54.
CWA09: Deleted commitment CWA 09 which
reads as follows: 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 2013 activities.
Regions will continue to conduct collaborative
EPA/state annual work planning processes
addressing NPDES permitting, compliance
monitoring, and enforcement activities,
including work-sharing. It was deemed
unnecessary to have an ACS commitment on
this.
Deleted from page 42.
CWA 10: Deleted CWA 10 which read as
follows: Regions should focus their CWA
enforcement work towards meeting the national
target of 37% for concluding federal judicial and
The Goal was to increase the percentage of our
enforcement actions taken in waters that do not
meet water quality standards. The FY 2011
target was 37%, compared to an FY 2009
Deleted from CWA section.
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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.
baseline of 32%. In FY 2011, EPA focused
approximately 60% of its water quality
enforcement actions to facilities discharging to
waters that do not meet water quality standards.
Given this achievement, the Agency has chosen
another area of focus (Electronic Reporting) for
its FY 2012-2013 Priority Goal.
EJ01: Headquarters (HQ) added this
commitment which involves the analysis of FY
2012EJSEATdatabyHQ.
Headquarters believes it's important to analyze
FY 12 EJSEAT data to consider developing a
baseline for a budget measure related to case
initiations in areas with environmental justice
(EJ) concerns.
Added to page 20.
TSCA 01: The Lead Based Paint (LBP)
component of OECA's TSCA 01 ACS
commitment, which focuses on inspections, will
serve as OECA's FY 2013 measure of
compliance work being done to protect children's
health. TSCA 01 was an FY 2012 measure, but
identification of the LBP component as a
children's health measure is new.
Monitoring and enforcement efforts to promote
compliance with LBP rules, particularly the
Renovation, Repair and Painting (RRP) Rule,
advance the goal of eliminating and preventing
LBP hazards, which are the primary single
cause of childhood lead poisoning. These
efforts support the Agency's mission to
eliminate childhood lead poisoning.
See page 60.
TSCA02: Added commitment TSCA02, which
reads as follows: Report other compliance
monitoring activities at the end of the year; and
break-out the description of other such activities
by TSCA program area. (See the CMS and the
future outcomes of the compliance monitoring
national dialogue for more details).
See explanation next to Compliance Monitoring
National Dialogue on the bottom of page #
See page 60.
CAA04, CAA06, RCRA 01, Ol.s, 02, OSRE 04,
CWA07, FIFRA Fedl, Fed-Fac05, SRF-01:
Language was modified (slightly in some
instances) under each of these ACS commitments.
Language was modified (slightly in some
instances) to reflect focus of FY 2013 activities.
See pages:
- (CAA04) 29,
- (CAA06)31,
- (CWA07) 42,
- (RCRA01,01.s)51,
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Contacts
Maureen Lydon
- (RCRA02 & OSRE04) 54,
- (FIFRA Fed 1)70,
- (Fed Fac 05) 89 and
- (SRF01) 90.
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