UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
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Date Signed: August 25, 1986
MEMORANDUM
SUBJECT: Revised Policy Framework for State/EPA Enforcement Agreements
FROM: A. James Barnes (signed by A. James Barnes)
Deputy Administrator
TO: Assistant Administrators
Associate Administrator for Regional Operations
Regional Administrators
Regional Counsels
Regional Division Directors
Directors, Program Compliance Offices
Regional Enforcement Contacts
I am pleased to transmit to you a copy of the Agency's revised Policy Framework for
State/EPA Enforcement agreements. The Policy Framework, originally developed in 1984, along
with program-specific implementing guidance, will continue to serve as the blueprint for our
State/EPA enforcement relationship. The revised Policy Framework integrates new guidance
developed since its original issuance. It reinforces the Guidance for the FY 1987 Enforcement
Agreements Process which I transmitted to you on April 15, 1986 and should serve as your guide
for negotiations and implementation of the Enforcement Agreements.
Although the intent of the revisions was to incorporate new policy, the process gave the
Agency, with the assistance of the Steering Committee on the State/Federal Enforcement
Relationship, an opportunity to reassess with the States our original approach. This process has
clearly reaffirmed that the basic approaches we put in place in 1984 for an effective working
partnership are sound and that all parties continue to be committed to its effective
implementation.
The revisions incorporate into the Policy Framework addenda developed over the past
two years in the areas of oversight of State civil penalties, involvement of the State Attorneys
General in the Enforcement Agreements process, and implementation of nationally managed or
coordinated cases. The revisions also reflect, among other things, some of the points that have
been emphasized in my annual guidance on the Enforcement Agreements process, the Evaluation
Report on Implementation of the Agreements, and the Agency's Criminal Enforcement and
Federal Facilities Compliance draft strategies.
I am firmly committed to full and effective implementation of the Policy Framework and
am relying on your continued personal attention to this important effort. I plan to review the
Region's performance in implementing the revised Policy Framework and the program-specific
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guidance, particularly the "timely and appropriate" enforcement response criteria, as part of my
semi-annual regional visits.
I encourage you to share the revised Policy Framework with your State counterparts.
Attachments
cc: Steering Committee on the State/Federal Enforcement Relationship
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POLICY FRAMEWORK FOR STATE/EPA
ENFORCEMENT AGREEMENTS
August 1986
(originally issued June 1984)
OFFICE OF ENFORCEMENT
AND COMPLIANCE MONITORING
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POLICY FRAMEWORK FOR STATE/EPA ENFORCEMENT AGREEMENTSi
Achieving and maintaining a high level of compliance with environmental laws and
regulations is one of the most important goals of Federal and State environmental agencies, and
is an essential prerequisite to realizing the benefits of our regulatory programs. While States and
local governments have primary responsibility for compliance and enforcement actions within
delegated or approved States, EPA retains responsibility for ensuring fair and effective
enforcement of Federal requirements and a credible national deterrence to noncompliance. An
effective State/Federal partnership is critical to accomplishing these goals, particularly given
limited State and Federal resources. The task is difficult and one of the most sensitive in the
EPA/State relationship, often compounded by differences in perspectives on what is needed to
achieve compliance.
To establish an effective partnership in this area, and to implement the State/Federal
enforcement relationship envisioned in the Agency Oversight and Delegation policies, EPA
called for State-specific enforcement agreements to be in place beginning FY 1985 which will
ensure there are: (1) clear oversight criteria, specified in advance, for EPA to assess good State —
or Regional - compliance and enforcement program performance; (2) clear criteria for direct
Federal enforcement in delegated States with procedures for advance consultation and
notification; and (3) adequate State reporting to ensure effective oversight.
This document is the Agency's policy framework for implementing an effective
State/Federal enforcement relationship through national program guidance and Regional/State
agreements. It is the product of a Steering Committee effort involving all major national EPA
compliance and enforcement program directors, State Associations, State officials from each of
the media programs, and the National Governors' Association. EPA anticipates that the
relationship, and the use of the agreements first established in FY 1985, will evolve and improve
over time. They will be reviewed and updated where necessary, on an annual basis. The Policy
Framework will be subject to periodic review and refinement. Originally issued on June 26,
1984, the Policy Framework has been updated to reflect additional guidance developed since that
time.
The term Enforcement Agreement is used throughout to describe the document(s), be it
an existing grant, SEA, MOU, or separate Enforcement Agreement, which contains the
provisions outlined in the Policy Framework and related media-specific guidance. (See p.
4 for description of form of agreement.)
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Policy Framework Overview
The Policy Framework applies both to Headquarters program offices in their
development of national guidance and to Regions in tailoring program guidance to State-specific
needs and agreements. Although enforcement agreements are not required or States which do not
have delegated or approved programs, Regions are encouraged to apply to these States certain
policies and provisions where relevant, particularly advance notification and consultation
protocols. The Policy Framework is divided into six sections, to address the following key areas:
A. State/Federal Enforcement "Agreements": Form. Scope and
Substance (pages 4-7)
This section sets forth for Regions and States developing enforcement agreements the
areas that should be discussed, priorities, and the degree of flexibility that Regions have
in tailoring national guidance to State-specific circumstances, including the form and
scope of agreements.
B. Oversight criteria and Measures: Defining Good Performance (pages 8-17)
This section is primarily addressed to EPA's national programs, setting forth criteria and
measures for defining good performance generally applicable to any compliance and
enforcement program whether administered by EPA or a State. It forms the basis for EPA
oversight of State programs. A key new area that should receive careful review is the
definition of what constitutes timely and appropriate enforcement response, Section B,
Criterion #5, pages 11-13.
C. Oversight Procedures and Protocols (pages 18-20)
This section sets forth principles for carrying out EPA's oversight responsibilities,
including approach, process and follow-up.
D. Criteria for Direct Federal Enforcement in Delegated States
(pages 21-25)
This section sets forth the factors EPA will consider before taking direct enforcement
action in a delegated State and what States may reasonably expect of EPA in this regard
including the types of cases and consideration of whether a State is taking timely and
appropriate enforcement action. It also establishes principles for how EPA should take
enforcement action so that we can be most supportive of strengthening State programs.
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E. Advance Notification and Consultation (pages 26-30)
This section sets forth EPA's policy of "no surprises" and what arrangements must be
made with each State to ensure the policy is effectively carried out by addressing planned
inspections, enforcement actions, press releases, dispute resolution and assurances that
publicly reported performance data is accurate.
F. State Reporting (pages 31-35)
This section sets forth seven key measures EPA will use, at a minimum, to manage and
oversee performance by Regions and States. It summarizes State and regional reporting
requirements for: (1) compliance rates; (2) progress in reducing significant non-
compliance; (3) inspection activities; (4) formal administrative enforcement actions; and
(5) judicial actions, at least on a quarterly basis. It also discusses required commitments
for inspections and for addressing significant non-compliance.
In addition, it sets forth State and regional requirements for recordkeeping and evaluation
of key milestones to assess the timeliness of their enforcement response and penalties
imposed through those actions.
Appendices
Appendix A: Annual priorities and implementing guidance provides a list of the annual
priorities for implementing the enforcement agreements and a summary index of what
national program guidance has been or will be issued by programs to address the areas
covered by the Policy Framework for State/EPA Enforcement Agreements.
Appendix B: Addendum to the Policy Framework on "Implementing Nationally Managed
or Coordinated Enforcement Actions," issued January 4, 1985.
Appendix C: Guidance on "Division of Penalties with State and Local Governments,"
issued October 30, 1985.
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A. STATE/FEDERAL ENFORCEMENT AGREEMENTS: FORM, SCOPE, AND
SUBSTANCE
This section sets forth the form, scope and substance of the State/Federal Enforcement
Agreements as well as the degree of flexibility Regions have in tailoring-national policy to
individual States.
1. What Form Should the Agreements Take?
We do not anticipate the need for a new vehicle or document for the State/Federal
enforcement agreements. Wherever possible, State/Federal agreements should be set forth in one
or more of a number of existing formats: grant agreements, State/EPA Agreements, Memoranda
of Agreement or Understanding or a statement of Regional Office operating policy. Where there
are new documents the appropriate linkage should be made to grants and SEA's as applicable. To
the extent the areas covered by this Policy Framework translate into specific output
commitments and formal reporting requirements, they may belong in the grant agreements as
specified in national program grant guidance. Regions should discuss with the States at an early
stage in the planning process their views on both the form and substance of the agreements. Once
the basic agreements are in place, Regions should consider most aspects of the written
agreements as multi-year, minimizing the need to renegotiate the agreements each year. Regions
should conduct an annual review with the States to identify needed revisions and additions to the
agreements to address identified problems or reflect further national guidance.
2. What is the Scope of the Agreements?
This guidance and the State/EPA agreements cover all aspects of EPA's civil compliance
and enforcement programs, including those activities involving Federal facilities. The criminal
enforcement program is not included and will be addressed elsewhere.
Discussions between EPA Regions and States should cover the minimum areas listed
below:
• Oversight Criteria and Measures: Good Performance Defined — See Section B.
Oversight Procedures and Protocols - See Section C.
• Criteria for Direct EPA Enforcement — Section D.
Procedures for Advance Notification and Consultation - See Section E.
• Reporting Requirements — See Section F.
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However, Regions and States are not expected to duplicate national Program guidance in
their agreements — we are not looking for lengthy documents. Written agreements resulting from
these discussions could cover topics which are not clearly specified elsewhere. If not otherwise
specified, national policy will apply and should be so stated in the State agreements. Although
not required for non-delegated or unapproved programs, Regions are encouraged to apply certain
policies and provisions where relevant, particularly advance notification and consultation
protocols.
This Policy Framework and the resulting State/EPA Enforcement Agreements are
intended to enhance enforcement of State and Federal environmental laws. Each agreement
should be careful to note that nothing in them or this Policy Framework constitutes or creates a
valid defense to regulated parties in violation of environmental statutes, regulations or permits.
3. Parties to the Agreements and Participants in the Process.
It is important to involve the appropriate State and regional personnel early in the
agreements process. In the Regions, this means involving the operating level program staff and
the Regional Counsel staff along with top management; and in the States it means the
participation of all the organizational units responsible for making enforcement work, e.g., State
program staff, those responsible for oversight of field operations, staff attorneys, and the State
Attorneys General (AG). The State agency should have the lead in establishing effective
relationships with the State AG or State legal staff, as appropriate. The Regions should ensure
that there is adequate communication and coordination with these other participants in the
enforcement process. States are strongly encouraged to commit advance notification and
consultation procedures/protocols between the State agency and the Stage AG (or State legal
staff, as appropriate) to writing. The Region should seek to incorporate these written protocols
into the State/EPA Enforcement Agreements (See discussion on pages 17 and 26-27).
4. What Flexibility do Regions Have?
Regions must be allowed substantial flexibility to tailor agreements to each State, as the
agreements process is intended to be based upon mutual understandings and expectations. This
flexibility should be exercised within the framework of national program policy and the
Agency's broad objectives. Specifically,
a. Oversight Criteria:
Oversight criteria would generally be provided in national program guidance but
Regions should tailor their general oversight to address environmental and other
priorities in the Region or State, and other specific areas of concern that are
unique to an individual State, including any issues raised by the scope of State
enforcement authorities, unique technical problems and available expertise, and
areas targeted for improvement.
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In addition, Regions and States should adapt national timely and appropriate enforcement
response criteria to State-specific circumstances to fit State authorities and procedures as
follows:
(i) Timeliness: The national program guidance on key milestones and
timeframes should be applied to all States with adjustments to
accommodate each State's laws and legal procedures. Such adjustment can
be important particularly where the proposed enforcement action cannot
possibly take place within the proposed timeframes or where a State
chooses to address problems more expeditiously than the Federal
guidelines. The trigger points should be realistic expectations, but within
modest variance from the national goals. Other adjustments should not be
made solely because a State program consistently takes longer to process
these actions due to constraints other than procedural requirements, e.g.,
resources. However, if this is the case the timeframes should serve as a
basis for reviewing impediments with the State to identify how problems
can be overcome and to explore ways over time for the State program to
perform more efficiently. (See discussion in Section B. p. 13)
The timeframes are not intended to be rigid deadlines for action,
but rather are: (1) general targets to strive for in good program
performance; (2) trigger points that EPA and States should use to review
progress in individual cases; and (3) presumptions that, if exceeded, EPA
may take direct enforcement action after consideration of all pertinent
factors and consultation with the State. It is not the Agency's intention to
assume the major enforcement role in a delegated State as a result of these
timeframes. The trigger points should be realistic expectations, but within
modest variance from the national goals. It must also be realized that in
some programs we need experience with the timeframes to assess how
reasonable and workable they really are and further, that judgments on
what is a reasonable timetable for action must ultimately be case specific.
For example, complex compliance problems may require longer-term
studies to define or achieve an appropriate remedy.
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(ii) Appropriate Enforcement Response:
(a) Choice of response: National medium-specific program guidance
applicable to State programs on appropriate enforcement response
should be followed (See Appendix A). There is usually sufficient
flexibility within such guidance to allow the exercise of discretion on
how best to apply the policies to individual cases. The Agency is
making every effort to set forth a consistent national policy on
enforcement response for each program. It is therefore essential that in
setting forth clear expectations with States this guidance not be altered.
(b) Definitions of formal enforcement actions: Regions should reach
agreement with States as to how certain State enforcement actions will
be reported to and interpreted by EPA. This should be based upon the
essential characteristics and impact of State enforcement actions, and
not merely upon what the actions are called. National program
guidance setting forth consistent criteria for this purpose should be
followed, pursuant to the principles listed in Section B, pages 11-12.
(c) Civil Penalties and Other Sanctions: Program guidance must also
be followed on where a penalty is appropriate. Regions have the flexibility
to consider other types of State sanctions that can be used as
effectively as cash penalties to create deterrence, and determine how
and when it might be appropriate to use these sanctions consistent with
national guidance. Regions and States should reach understanding on
documentation to evaluate the Sale's penalty rationale. Maximum
flexibility in types of documentation will be allowed to the State.
5. Procedure and Protocols on Notification and Consultation:
Regions and States should have maximum flexibility to fashion arrangements that are
most conducive to a constructive relationship, following the broad principles outlined in this
document.
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6. State-Specific Priorities:
In addition, while of necessity EPA must emphasize commitments by States top address
significant noncompliance and major sources of concern, Regions should be sensitive to the
broad concerns of State Programs including minor sources and the need to be responsive to
citizen complaints. Regions should discuss the State's perspective on both its own and national
priorities, and take into account State priorities to the extent possible.
7. What Does it Mean to Reach Agreement?
To the extent possible, these agreements should reflect mutual understandings and
expectations for the conduct of Federal and State enforcement programs. At a minimum, EPA
Regions must: (1) be clear and ensure there are "no surprises"; (2) make arrangements with the
States so that actions taken are constructive and supportive; and (3) tailor the application of the
national program guidance to the States' programs and authorities. Where mutual agreement
cannot be achieved, clear unilateral statements of policy will have to suffice, with commitments
to try to seek further agreements over time. Areas where agreements have not been reached
should be clearly identified for senior Agency management attention.
B. OVERSIGHT CRITERIA AND MEASURES: DEFINING GOOD PERFORMANCE
The first step to achieving strong and effective national compliance and enforcement
programs is a clear definition of what constitutes good performance. Because each of EPA's
programs embodies unique requirements and approaches, good performance must be defined on
a program-specific basis. Adjustments also made in applying criteria and measures to the States
and Regions, based upon their environmental problems and authorities. Nevertheless, there are
several basic elements which will generally be applicable to a good compliance and enforcement
program in any of our medium-specific programs. The following outlines the criteria and
measures that form the common framework for defining a quality program. The framework is to
serve as a guide to the national programs as they develop, in cooperation with Regions and
States, the criteria they will use to assess their performance in implementing national compliance
and enforcement programs.
The framework is not intended to be adopted word-for-word by the programs, nor is there
any format implied by this list. What is important are the concepts. This section addresses only
the elements of a quality program. Issues such as how oversight should be conducted are
addressed in Section C. Each national program may choose to focus on certain elements of
performances in a given year.
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These criteria and measures are intended to apply to the implementing agency, that is, to
an approved or delegated State or to an EPA Region in the event a program is not "delegated."
Our philosophy is that EPA should be held to the same standards as we would apply to the States
if they were implementing the program. Portions may also apply to those non-approved or non-
delegated States which are administering portions of the programs under cooperative
agreements.
CRITERION #1 Clear Identification of and Priorities for the Regulated Community
A quality compliance and enforcement program is based upon an inventory of regulated
sources which is complete, accurate and current. The data should in turn be accessible,
preferably in automated data systems which are accurate, and up-to-date. The scope of coverage
for the inventory should be appropriately defined by each program as it is probably not feasible
to identify every person or facility subject to environmental laws and regulations, especially
when they are numerous small sources. Those priorities should be clearly established in national
program guidance and tailored to State-specific circumstances as appropriate.
The inventory of sources or other relevant information on sources should be utilized as a
basis for a priority-setting system established by the administering agency. These priorities
should reflect and balance both national priorities and State-specific priorities. A quality
program uses those priorities as a basis for program management. National priorities are
generally set forth in EPA's Operating Year Guidance and program-specific compliance and
enforcement strategies. State-specific priorities should address not only efforts to achieve broad
based compliance but also should assess the expected environmental impact of targeting
enforcement and compliance monitoring to specific geographic areas or against certain source
types. Ambient monitoring systems can provide an important point of departure for priority-
setting.
CRITERION #2 Clear and Enforceable Requirements
Requirements established through permits, administrative orders and consent decrees
should clearly define what a specific source must do by a date certain, in enforceable terms. It is
not EPA's intention in this policy framework to suggest that EPA conduct a top down review of a
State or Regional program's entire regulatory program. However, areas where provisions cannot
be enforced due to lack of clarity or enforceable conditions should be identified and corrected.
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CRITERION #3 Accurate and Reliable Compliance Monitoring
There are four objectives of compliance monitoring:
Reviewing source compliance status to identify potential violations;
Helping to establish an enforcement presence;
Collecting evidence necessary to support enforcement actions regarding identified
violations; and
Developing an understanding of compliance patterns of the regulated community
to aid in targeting activity, establishing compliance/enforcement priorities,
evaluating strategies, and communicating information to the public.
The two factors in assessing the success of a compliance monitoring program are
coverage and quality.
Coverage: Each program's strategy should reflect a balance between coverage: (1) for breadth, to
substantiate the reliability of compliance statistics and establish an enforcement presence; and
(2) for targeting those sources most likely to be out of compliance of those violations presenting
the most serious environmental or public health risk.
Inspections: Each administering agency should have a written and reviewable inspection
strategy, reviewed and updated annually, as appropriate: in some programs a multi-year
strategy may be preferable. The strategy should demonstrate the minimum coverage for reliable
data gathering and compliance assessment set forth in national program guidance and meet legal
requirements for a "neutral inspection scheme." The strategy should also address how the
inspections will most effectively reach priority concerns and potential noncompliers including
the use of self-reported data, citizen complaints and historic compliance patterns. The strategy
will be assessed on whether it embodies the appropriate mix of categories of inspections,
frequency and level of detail. Inspections should then be carried out in a manner consistent with
the inspection strategy.
Source Self-Monitoring and Reporting: The administering agency should ensure that
minimum national requirements for source self-monitoring and reporting are imposed
and complied with, either through regulation or permit condition, pursuant to national
guidance as appropriate.
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Quality: Each program should define minimum standards for quality assurance of data and data
systems, and timely and complete documentation of results. At a minimum, each program should
have a quality assurance program to insure the integrity of the compliance monitoring program.
This quality assurance program should address essential lab analysis and chain of custody issues
as appropriate.
Inspections: Inspectors should be able to accurately document evidence needed to
determine the nature and extent of violations, particularly the presences of significant violations.
Document of inspection findings should be timely, complete and able to support subsequent
enforcement responses, as appropriate to the purpose of the inspection. Federal oversight
inspections should corroborate findings. Oversight inspections are a principal means of
evaluating both the quality of an inspection program and inspector training.
Source Self-Monitoring: The administering agency should have a strategy for and
implement quality assurance procedures, with sufficient audits and follow-up action to
ensure the integrity of self-reported data.
CRITERION #4 High or Improving Rates of Continuing Compliance
The long-term goal of all of our compliance and enforcement programs is to achieve high
rates of continuing compliance across the broad spectrum of the regulated community. Until that
goal is achieved, compliance rates can fluctuate for several reasons. In assessing how well an
administering agency is meeting the goal of high or improving rates of compliance, other factors
must be assessed in addition to the overall compliance rate. Improved inspections or inspection
targeting often can result in a temporary decrease in rates of compliance until newly found
violations are corrected and the regulated community responds to the more vigorous attention to
specific compliance problems. In these instances, a decrease in the rate of compliance would be a
sign of a healthy compliance and enforcement program. At a minimum, programs should design
mechanisms to track the progress of all sources out of compliance through major milestones up
to achieving final physical (full) compliance with applicable regulations and standards.
Program quality must also be assessed in terms of how well the program is returning
significant noncompliers to compliance. The use of lists of significant violators and specific
commitments to track and resolve significant noncompliance should be part of the planning
process of the administering agency, and between States and Regions. The lists should be
developed in consultation with the States and continually updated each fiscal year and sources on
it tracked through to final physical compliance.
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CRITERION #5 Timely and Appropriate Enforcement Response
Quality enforcement programs ensure that there is timely and appropriate enforcement
response to violations. Expectations for what constitutes timely and appropriate action should be
based upon national program guidance, tailored to the procedures and authorities in a given State
and assessed in regard to particular circumstances surrounding each instance of violation.
National programs must establish benchmarks or milestones for what constitutes timely and
appropriate enforcement action, forcing progress in enforcement cases toward ultimate
resolution and full physical compliance. This concept is a key new feature to our compliance and
enforcement program implementation.
In designing oversight criteria for timely enforcement response, each program will
attempt to capture the following concepts:
1. A set number of days from "detection" of a violation to an initial response. Each
program should clearly define when the clock starts, that is, how and when a
violation is "detected."
2. Over a specified period of time, a full range of enforcement tools may be used to
try to achieve compliance, including notices of violation, warning letters, phone
calls, site visits, etc. The adequacy of these responses will be assessed based upon
whether they result in expeditious compliance.
3. A prescribed number of days from initial action within which a determination
should generally be made, that either compliance has been achieved or an
administrative enforcement action has been taken (or a judicial referral has been
initiated, as appropriate) or that, at a minimum:
Explicitly requires recipient to take some corrective/remedial action, or
refrain from certain behavior, to achieve or maintain compliance;
• Explicitly is based on the issuing Agency's determination that a violation
has occurred;
Requires specific corrective action, or specifies a desired result that may
be accomplished however the recipient chooses, and specifies a timetable
for completion;
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• May impose requirements in addition to ones relating directly to
correction
(e.g., specific monitoring, planning or reporting requirements); and
Contains requirements that are independently enforceable without having
to prove original violation and subjects the person to adverse legal
consequences for noncompliance.
4. A specific point at which a determination is made either that final physical
compliance has been achieved, that the source is in compliance with a milestone
in a prior order, or that escalation to a judicial enforcement action has been taken
if such actions have not already been initiated.
In developing program-specific guidance, this milestone may be treated more as a
concept than as a fixed timetable, taking into account the fact that the
administrative hearing process and the State Attorney General's actions are not
within the direct control of the administering agency.2 What is important is the
embodiment of the concept of timely follow-up and escalation in requirements for
tracking and management.
5. Final physical compliance date is firmly established and required of the facility.
Although it is not possible for programs to establish any national timeframes, the
concept of final physical compliance by a date certain should be embodied in
EPA and State enforcement actions.
6. Expeditious physical compliance is required. It may not be possible for programs
to define "expeditious" in terms of set time periods, but some concept of
"expeditious" (i.e., that the schedule will result in a return to full physical
compliance as quickly as can reasonably be expected) should be embodied in
each program's guidance.
See p. 17, 26-27, regarding the State Agency's responsibilities for coordinating with the
State Attorney General or other legal staffs.
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Timeframes established by the national programs for each of these minimum milestones
are principally intended to serve as trigger points and not as absolute deadlines, unless
specifically defined as such. Whatever timeframes are established are intended to apply only to
Federal requirements as adopted by the States, and do not apply to State statutes and
requirements that go beyond those required by Federal law. The timeframes are key milestones
to be used to manage the program, to trigger review of progress in specific cases, and a
presumption of where EPA may take direct enforcement action after consideration of all
pertinent factors and consultation with the State.
Timeframes and their use in management will evolve over time as they will have to
reflect different types of problems that may warrant different treatment. For example, programs
will have to take into account such factors as new types of violations, the difference between
operating and maintenance violations versus those that require installation of control equipment,
emergency situations which may fall outside the scope of the normal timeframes for action, etc.
Administering agencies are expected to address the full range of violations in their
enforcement responses considering the specific factors of the case and the need to maintain a
credible enforcement presence. However, the new management approach setting forth desired
timeframes for timely action could have resource implications beyond what is currently available
to or appropriate for the full range of sources and violations. Therefore, as we begin to employ
the concept of timely and appropriate enforcement response, at a minimum, the focus should be
on the greatest problems, i.e., the significant noncompliers. Over time, and with more
experience, this concept should be phased-in to cover a broader range of violations. This in no
way should constrain the programs from applying the concepts broadly.
The choices of appropriate response are to be defined within the constraints of national
program guidance and applied by the administering agency based upon consideration of what is
needed: (1) in general, to achieve expeditious correction of the violation, deterrence to future
noncompliance and fairness; and (2) in individual circumstances, based upon the gravity of the
violation, the circumstances surrounding the violation, the source's prior record of compliance
and the economic benefits accrued from noncompliance. With three exceptions, the form of the
enforcement response is not important by itself, as long as it achieves the desired compliance
result. The exceptions generally fall into the following three categories:
1. If compliance has not been achieved within a certain timeframe, the enforcement
response should meet minimum requirements, usually associated with at least the
issuance of an administrative order (see criteria listed above) or judicial referral.
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2. Because of the need to create a strong deterrence to noncompliance, it is
important to assess penalties in certain cases, and only certain types of
enforcement actions can provide penalties. Each program must clearly define, as
appropriate, the circumstances under which nothing less than a penalty or
equivalent sanction will be acceptable. (See Criterion #6 below.)
3. In some circumstances, a judicial action or sanction is usually the only acceptable
enforcement tool. Each program must define these circumstances as appropriate.
For example, a judicial action might be required where a compliance schedule for
Federal requirements goes beyond Federal statutory deadlines.
A good program should have adequate legal authority to achieve the above
objectives. Where deficiencies have been identified, steps should be taken to fill
identified gaps.
CRITERION #6 Appropriate Use of Civil Judicial and Administrative Penalty and Other
Sanction Authorities to Create Deterrence3
1. Effective Use of Civil Penalty Authorities and Other Sanctions:
Civil penalties and other sanctions play an important role in an effective enforcement
program. Deterrence of noncompliance is achieved through: 1) a credible likelihood of detecting
a violation, 2) the speed of the enforcement response, and 3) the likelihood and severity of the
sanction. While penalties or other sanctions are the critical third element in creating deterrence,
they can also contribute to greater equity among the regulated community by recovering the
economic benefit a violator gains from noncompliance over those who do comply.
Effective State and Regional programs should have a clear plan or strategy for how their
civil penalty or other sanction authorities will be used in the enforcement program. At a
minimum, penalties and/or sanctions should be obtained where programs have identified that a
penalty is appropriate (see Criterion #5 above).
The anticipated use of sanctions should be part of the State/EPA Enforcement
Agreements process, with Regions and States discussing and establishing how and when the
State generally plans to use penalties or other approaches where some sanction is required.
Excerpts from the Policy on "Oversight of State Civil Penalties" 2/28/86. The focus of
the
policy is on both civil judicial and civil administrative penalties, and does not cover
criminal penalties.
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EPA generally prefers the use of cash penalties to other types of sanctions.4 However,
there may be other sanctions which are preferable to cash penalties in some circumstances. In
particular, States may have a broader range of remedies than those available at the Federal level.
Examples of other sanctions may be: pipeline severance (UIC), license revocation (FIFRA) or
criminal sanctions including fines and/or incarceration. National program guidance should
clarify in general terms how the use of other types of sanctions fits into the program's penalty
scheme at the Federal and State levels, e.g., whether they are substitutes for or mitigate a cash
penalty.5 In any case, States are urged to use cash penalty authorities in those cases for which a
penally is "appropriate" and/or to use other sanctions pursuant to these agreements with the
Regions.
EPA encourages States to develop civil administrative penalty authority in addition to
civil judicial penalty authority, and to provide sufficient resources and support for successful
implementation where they do not already have this authority. In general, a well designed
administrative penalty authority can provide faster and more efficient use of enforcement
resources, when compared to civil judicial authorities. Both civil judicial and administrative
penalty authorities are important, complementary, and each should be used to greatest advantage.
EPA is similarly seeking to gain administrative penalty authority for those Federal programs
which do not already have it. To support State efforts to gain additional penalty authorities. EPA
will share information collected on existing State penalty authorities and on the Federal
experience with the development and use of administrative authorities.
2. Oversight of Penalty Practices:
EPA Headquarters will oversee Regional penalties to ensure Federal penalty policies are
followed. This oversight will focus both on individual penalty calculations and regional penalty
practices and patterns.
4 In limited circumstances where they meet specified criteria, EPA and DOJ policies and
procedures allow for alternative payments — such as beneficial projects which have
economic value beyond the costs of returning to compliance — in mitigation of their
penalty liability.
5 Until program-specific guidance is developed to define the appropriate use of civil
sanctions, the Region and State should consider whether the sanction is comparable to a
cash penalty in achieving compliance and deterring noncompliance. Costs of returning to
compliance will not be considered a penalty. Criminal authorities, while not clearly
comparable to cash penalties, can be used as effectively as cash penalties to create
deterrence in certain circumstances.
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EPA will review state penalties in the context of the State's overall enforcement program
not merely on its use of cash penalties. While individual cases will be discussed, the program
review will more broadly evaluate how penalties and other sanctions can be used most
effectively. The evaluation will consider whether the penalties or other sanctions are sought in
appropriate cases, whether the relative amounts of penalties or use of sanctions reflect increasing
severity of the violation, recalcitrance, recidivism, etc., and bear a reasonable relationship to the
economic benefit of noncompliance (as applicable) and whether they are successful in
contributing to a high rate of compliance and deterring noncompliance. EPA may also review the
extent to which State penalties have been upheld and
collected.
3. Development and Use of Civil Penalty Policies:
EPA Regions are required to follow written Agency-wide and program specific penalty
policies and procedures.
EPA encourages States to develop and use their own State penalty policies or criteria for
assessing civil penalties. The advantages of using a penalty policy include:
• Leads to improved consistency;
• Is more defensible in court;
• Generally places the Agency in a stronger position to negotiate with the violator;
• Improves communication and support within the administering agency and among
the agency officials, attorneys and judges especially where other organizations are
responsible for imposing the penalty;
• When based on recoupment of economic benefit and a component for seriousness,
deters violations based upon economic considerations while providing some
equity among violators and nonviolators; and
• Can be used by judges as a basis for penalty decisions.
EPA encourages States to consider EPA's penalty policies as they develop their own
penalty policies.
4. Consideration of Economic Benefit of Noncompliance:
To remove incentives for noncompliance and establish deterrence through its civil
penalties, EPA endeavors to recoup the economic benefit the violator gained
through noncompliance. EPA encourages States to consider and to quantify where
possible, the economic benefit of noncompliance where this is applicable. EPA
expects States to make a reasonable effort to calculate economic benefit and
encourages States to attempt to recover this amount in negotiations and litigation.
States may use the Agency's computerized model (known as BEN) for calculating
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that benefit or different approaches to calculating economic benefit. EPA will provide technical
assistance to States on calculating the economic benefit of noncompliance, and has made the
BEN computer model available to States.
CRITERION #7 Accurate Recordkeeping and Reporting
A quality program maintains accurate and up-to-date files and records on source
performance and enforcement responses that are reviewable and accessible. All recordkeeping
and reporting should meet the requirements of the quality assurance management policy and
procedures established by each national program consistent with the Agency's Monitoring Policy
and Quality Assurance Management System. Reports from States to Regions, Regions to
Headquarters must be timely, complete and accurate to support effective program evaluation and
priority-setting.
State recordkeeping should include some documented rationale for the penalties sought
to
support defensibility in court, enhance Agency's negotiating posture, and lead to greater
consistency. These records should be in the most convenient format for administration of the
State's penalty program to avoid new or different recordkeeping requirements.
CRITERION #8 Sound Overall Program Management
A quality program should have an adequate level, mix and utilization of resources,
qualified and trained staff, and adequate equipment. The intention here is not to focus on
resource and training issues unless there is poor performance identified elsewhere in the
program. In those instances, these measures can provide a basis for corrective action by the
administering agency. There may be, however, some circumstances in which base level of
trained staff and equipment can be defined by a national program where it will be utilized as an
indicator of whether the program is adequate.
Similarly, a good compliance and enforcement program should have a clear scheme for
how the operations of other related organizations, agencies and levels of government fit into the
program, especially the State Attorneys General or other appropriate State legal organizations.
The State Agency should, at a minimum, ensure that the State AG, internal legal counsel, or
other appropriate government legal staff are consulted on the enforcement commitments the
State is making to EPA to assure that the level of legal enforcement support and associated
resources needed to accomplish the agreed-upon goals are secured. This coordination should
result in timely review of initial referral packages, satisfactory settlement of cases, as
appropriate, timely filing and prosecution of cases, and prompt action where dischargers violate
consent decrees. (See Section E, p. 26-27'.
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C. OVERSIGHT PROCEDURES AND PROTOCOLS
This section addresses how EPA should conduct its oversight function, its approach,
process and follow-up, to build and improve individual programs and overall national
performance. On May 31, 1985, the Agency issued the Policy on Performance-Based Assistance,
which contains guidance on how Regions should oversee assistance agreements. Both of these
policies call for oversight with a problem-solving orientation with clear identification of actions
needed to correct problems or recognize good performance.
1. Approach
The goal of oversight should be to improve the State (or Regional) compliance and
enforcement program. To accomplish this, oversight should be tailored to fit State performance
and capability. The context must be the whole State compliance and enforcement program,
although EPA's focus for audit purposes will be on national priority areas.
No new oversight process is intended here. Existing procedures such as mid-year
reviews,
periodic audits and oversight inspections as established by each program and Region should be
used. Administering agencies should identify strengths and weaknesses of the State and Federal
programs and develop mutual commitments to correct problems.
EPA oversight of State performance should be consistent with the following principles:
a. Positive oversight findings should be stressed as well as the negative ones.
b. Positive steps that can be taken to build the capability of State programs in
problem areas should be emphasized. This should include providing
technical assistance and training - by EPA staff to the extent possible.
c. EPA action to correct problems should vary, depending on the
environmental or public health effect of the problem and whether it
reflects a single incident or a general problem with the State program.
d. The States should be given an opportunity to formally comment on EPA's
performance. Regions should provide information to the States that is
available on its performance against the national standards, including their
performance on meeting the "timely
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and appropriate" criteria, as well as their performance on commitments to
that State.
e. EPA should give States sufficient opportunity to correct identified
problems, and take corrective action pursuant to the criteria for direct
enforcement established in Section D.
f. EPA should use the oversight process as a means of transferring
successful
regional and State approaches from one Region or State to the other.
2. Process
Several actions can result in the most constructive review of the State's programs:
a. To the extent possible, files to be audited will be identified in advance,
with some provision for random review of a percentage of other files if
necessary.
b. Experienced personnel should be used to conduct the audit/ review — EPA
staff should be used to the extent possible to build relationships and
expertise.
c. There should be an exit interview and every opportunity should be made
to
discuss findings, comment on and identify corrective steps based upon a
review draft of the written report.
d. Opportunity should be made for staffs interacting on enforcement cases
and overseeing State performance to meet personally rather than rely
solely upon formal communications — this applies to both technical and
legal staffs.
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3. Follow-up and Consequences of Oversight
When State performance meets or exceeds the criteria and measures for defining good
program performance, EPA should reward this performance in some of the following ways:
a. Reduce the number, level or scope, and/or frequency of reviews or of
some
reporting requirements consistent with statutory or regulatory
requirements;
b. Reduce the frequency and number of oversight inspections; and/or
c. Allow the program more flexibility in applying resources from an almost
exclusive focus on national priorities e.g., major sources, to addressing
more priorities of concern to the State e.g., minor sources.
When State performance fails to meet the criteria for good State performance, EPA may
take some of the following actions, as appropriate:
a. Suggest changes in State procedures;
b. Suggest changes in the State's use of resources or training of staff;
c. Provide technical assistance;
d. Increase the number of oversight inspections and/or require submittal of
information on remedial activities;
e. Provide other workable State models and practices to States with problems
in specific areas and match State staff with expertise in needed area;
f. If State enforcement action has not been timely and appropriate, EPA
may take direct enforcement action;
g. Track problem categories of cases more closely;
h. Grant awards could be conditioned by targeting additional resources to
correct identified problems or reduced based on poor performance where
such performance is not due to inadequate resources; and/or
i. Consider de-delegation if there is continued poor performance.
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D. CRITERIA FOR DIRECT FEDERAL ENFORCEMENT IN DELEGATED STATES
This section addresses criteria defining circumstances under which approved State
programs might expect direct Federal enforcement action and how EPA will carry out such
actions so as to be most supportive of strengthening State programs.
1. When Might EPA Take Direct Enforcement Action in Approved States?
A clear definition of roles and responsibilities is essential to an effective partnership,
since EPA has parallel enforcement authority under its statutes whether or not a State has an
approved or delegated program. As a matter of policy in delegated or approved programs,
primary responsibility for action will reside with State or local governments with EPA taking
action principally where a State is "unwilling or unable" to take "timely and appropriate"
enforcement action. Many States view it as a failure of their program if EPA takes an
enforcement action. This is not the approach or view adopted here. There are circumstances in
which EPA may want to support the broad national interest in creating an effective deterrent to
noncompliance beyond what a State may need to do to achieve compliance in an individual case
or to support its own program.
Because States have primary responsibility and EPA clearly does not have the resources
to take action on or to review in detail any and all violations, EPA will circumscribe its actions
to the areas listed below and address other issues concerning State enforcement action in the
context of its broader oversight responsibilities. The following are four types of cases EPA may
consider taking direct enforcement action where we have parallel legal authority to take
enforcement action:
a. State requests EPA action
b. State enforcement response is not timely and appropriate
c. National precedents (legal or program)
d. Violation of EPA order or consent decree
In deciding whether to take direct enforcement in the above types of cases, EPA will
consider the following factors:
Cases specifically designated as nationally significant (e.g., significant
noncompliers, explicit national or regional priorities)
Significant environmental or public health damage or risk involved
Significant economic benefit gained by violator
Interstate issues (multiple States or Regions)
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How these factors are applied for the various types of cases is discussed below.
a. State requests EPA action:
The State may request EPA to take the enforcement action for several reasons
including but not limited to: where State authority is inadequate, interstate issues
involving multiple States which they cannot resolve by themselves, or where State
resources of expertise are inadequate, particularly to address the significant
violation/violators in the State in a timely and appropriate manner. EPA should honor
requests by States for support in enforcement. EPA will follow its priorities in meeting
any such requests for assistance, considering significance of environmental or public
health damage or risk involved, significant economic benefit gained by a violator, repeat
patterns of violations and violators. Based on this general guidance, each program
office may develop more specific guidance on the types of violations on which EPA
should focus. Regions and States are strongly encouraged to plan in advance for any
such requests for or areas needing EPA enforcement assistance during the State/EPA
Enforcement Agreements Process.
b. State Enforcement is not "Timely and Appropriate"
The most critical determinant of whether EPA will take direct enforcement action in an
approved State is whether the State has or will take timely and appropriate
enforcement action as defined by national program guidance and State/Regional
agreements. EPA will defer to State action if it is "timely and appropriate" except in
very limited circumstances: where a State has requested EPA action (a, above), there
is a national legal or program precedent which cannot be addressed through
coordinated State/Federal action (c, below), EPA is enforcing its own enforcement
action (d, below) or the case of a repeat violator, where the State response is likely to
prove ineffective given the pattern of repeat violations and prior history of the State's
success in addressing past violations.
(i) Untimely State Enforcement Response:
If a State action is untimely, EPA Regions must determine after advance
notification and consultation with the State whether the State is moving
expeditiously to resolve the violation in an "appropriate" manner.
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(ii) Inappropriate State Action:
EPA may take direct action if the State enforcement action falls short of that
agreed to in advance in the State/EPA Enforcement Agreements as meeting the
requirements of a formal enforcement response (See Section B, page 13)
where a formal enforcement response is required. EPA may also take action if
the content of the enforcement action is inappropriate, i.e., if remedies are
clearly inappropriate to correct the violation, if compliance schedules are
unacceptably extended, or if there is no appropriate penalty or other sanction.
(iii) Inappropriate Penalty or other Sanction:
For types of violations identified in national program guidance as requiring a
penally or equivalent sanction, EPA will take action to recover a penalty if a
State has not assessed a penalty or other appropriate sanction. EPA generally
will not consider taking direct enforcement action solely for recovery of
additional penalties unless a State penalty is determined to be grossly deficient
after considering all of the circumstances of the case and the national interest.
In making this determination, EPA will give every consideration to the State's
own penalty authority and any applicable State penalty policy. EPA will
consider whether that State's penalty bears any reasonable relationship to the
seriousness of the violation, the economic benefit gained by the violator (where
applicable) and any other unique factors in the case. While this policy provides
the basis for deciding whether to take direct Federal action on the basis of an
inadequate penalty, this issue should be discussed in more detail during the
agreements process to address any state-specific circumstances and
procedures established to address generic problems in specific cases. Where
identified in national guidance and agreed to between the Region and State,
other sanctions will be acceptable as substitutes or mitigation of penalty
amounts in these considerations.
Program-specific national guidance on expectations for State penalty
assessments may be developed in consultation with the States and applied for
determining adequacy of penalty amounts after being applied in practice in EPA
Regions. It is the current expectation of Agency managers that EPA will
continue to gain experience in implementing its own penalty policies before
national programs consider such guidance. Thus, in the near term a
determination that a penalty is "grossly deficient" will remain a judgment call
made on a case-by-case basis.
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c. National Precedents
This is the smallest category of cases in which EPA may take direct enforcement
action in an approved State, and will occur rarely in practice. These cases are
limited to those of first impression in law or those fundamental to establishing a
basic element of the national compliance and enforcement program. This is
particularly important for early enforcement cases under a new program or issues
that affect implementation of the program on a national basis. Some of these cases
may most appropriately be managed or coordinated at the national level.
Additional guidance on how potential cases will be identified, decisions made to
proceed and involvement of States and Regions in that process, has been
developed as Appendix B to this document.
d. Violation of EPA order or consent decree:
EPA places a high priority on following through on enforcement actions until
final compliance is achieved. If EPA has taken administrative, civil or criminal
judicial enforcement in a delegated or approved State, EPA will take any follow
up enforcement action on violations of those agreements or orders to preserve the
integrity of Federal enforcement actions.
2. How Should EPA Take Action So As To Better Support Strong State Programs?
Section E describes in some detail the principles and procedures for advance notification
and consultation with States. These are imperatives for a sound working relationship. In all of
these circumstances, where EPA may overfile a State action on the basis that it is not timely and
appropriate, EPA should work with the State as early as possible in the case, well before
completion of a State action which, if resulting in expeditious compliance by the facility, would
render any subsequent EPA involvement unconstructive, ineffective, or moot. This is particularly
important since it is EPA policy that once a case has been commenced, EPA generally will not
withdraw that case in light of subsequent or simultaneous State enforcement action.
In particular, Regions also should identify with their States particular areas in which
arrangements can or should be made, in advance, for direct EPA enforcement support where
State authorities are inadequate or compliance has been a continuing problem.
There are several other approaches identified here for how EPA can take enforcement
action, where it is appropriate, in a manner which can better support States.
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To the maximum extent possible, EPA should make arrangements with States to:
a. Take joint State/Federal action — particularly where a State is responsibly
moving to correct a violation but lacks the necessary authorities,
resources, or national or interstate perspective appropriate to the case.
b. Use State inspection or other data and witnesses, as appropriate.
c. Involve States in creative settlements and to participate in case
development - so that the credibility of States as the primary actor is
perceived and realized.
d. Arrange for division of penalties with State and local governments67 (to the
extent they participate in Federal enforcement actions, and where
permitted by law) — to enhance Federal/State cooperation in enforcement.
e. Issue joint press releases and share credit with the State - to ensure EPA
is
not in competition with the State and that EPA action is not erroneously
perceived as a weakness or failure in the State's program.
f. Keep States continually apprised of events and reasons for Federal actions
—to avoid conflicting actions and to building a common understanding of
goals and the State and Federal perspectives.
See Appendix C for Agency Policy on"Division of Penalties with State and Local
Governments," issued October 30, 1985.
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3. How Do the Expectations for "Timely and Appropriate Action" Apply to EPA in
Delegated States?
In delegated States, EPA performs an oversight function, standing ready to take direct
Federal enforcement action based upon the factors stated above. In its oversight capacity, in most
cases, EPA will not obtain real-time data. As indicated in Section F on State Reporting, EPA will
receive quarterly reports and will supplement these with more frequent informal communications
on the status of key cases. Therefore, we do not expect EPA Regions, through their oversight, to
be able to take direct enforcement action following the exact same timeframes as those that apply
to the administering agency. However, when EPA does determine it is appropriate to take direct
Federal action, EPA staff are expected to adhere to the same timeframes as applicable to the
States, starting with the assumption of responsibility for enforcement action.
E. ADVANCE NOTIFICATION AND CONSULTATION
A policy of "no surprises" must be the centerpiece of any effort to ensure the productive
use of limited Federal and State resources and an effective "partnership" in achieving
compliance. This principle should be applied to all aspects of the compliance and enforcement
program covering inspections, enforcement activities, press releases and public information, and
management data summaries upon which State and national performance are assessed.
In order to guarantee that there is ample advance notification and consultation between
the proper State and Federal officials, EPA Regions should confer annually with each State,
discuss the following areas and devise agreements as appropriate. The agreements should be
unique to each State and need not cover all areas - so long as there is a clear understanding and
discussion of how each area will be addressed.
1. Advance Notification to Affected States of Intended EPA Inspections and
Enforcement Actions
Agreements should identify:
Who should be notified, e.g.,
the head of the program if it involves potential Federal enforcement; and
who is notified of proposed/planned Federal inspections.
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How the State will be notified, e.g.,
the agencies share inspection lists; and
the agency contact receives a telephone call on a proposed Federal
enforcement case.
When they will be notified — at what point(s) in the process, e.g.,
when a case is being considered; and/or
when a case is ready to be referred, or notice order issued.
Some specific provisions need to be made to address the following:
a. Advance Notification of State Attorneys General or other legal staff of
potential EPA enforcement actions?
While EPA's primary relationship with the State is and should continue to be with
the State agency that has been delegated or been approved to administer the
programs, EPA needs to ensure that all parties in the State affected by a pending
EPA enforcement action receive appropriate advance notification. In addition,
when EPA negotiates commitments each year with the State to address specific
significant violators, it is important that all the parties affected by these
commitments are aware of the legal enforcement support and associated resources
needed to accomplish these goals.
As part of the State/EPA Enforcement Agreements process, the Region
should discuss with the Sate agency their internal procedures and/or protocols for
advance notification and consultation with the State AG or other legal staff. The
State agency is responsible for assuring that the State AG or other legal staff are
properly notified and consulted about planned Federal enforcement actions and/or
enforcement initiatives on an ongoing basis. States are strongly encouraged to
commit advance notification and consultation procedures/protocols reached
between the State agency and the State AG (or State legal staff, as appropriate) to
writing. The Regions should seek to incorporate these written protocols into the
State/EPA Enforcement Agreements.
7 In some States there are legal organizations that have direct enforcement authority which
bypasses the State AG, e.g., District Attorneys, internal legal counsel, Governor's
General
Counsel. In these instances, this guidance would apply to these other organizations.
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The Region should do everything possible to work through the State agency on the issue
of communicating with the State or other legal staff on potential EPA enforcement actions as
well as other matters. However, if the State agency does not have a workable internal procedure
and if problems persist, the Region, after advance notification and consultation with the State
agency, may make arrangements for direct communications with the State AG or other legal
staff.
The Region and State agency should discuss how the outside legal organizations will be
consulted on the commitments the State is making to EPA on addressing significant violators
each year. These consultations are intended to clarify the legal enforcement support needed to
accomplish these goals. This is particularly important for those State agencies dependent upon
the State AG or other outside legal organizations to implement their enforcement program.
State agencies are also encouraged to notify these organizations of the anticipated timing
of the negotiations each year with EPA on the Enforcement Agreements, grants, and related
documents.
Regions are encouraged to work with their State agencies to set up a joint meeting at least
annually to which all parties are invited-the program and legal staffs of both the EPA Region
and the State agency(s), plus U.S. Attorney staff and State AG staff— to review EPA's
enforcement priorities and recent program guidance.
b. Federal Facilities
Federal facilities may involve a greater or different need for coordination,
particularly where the Federal facilities request EPA technical assistance of where
EPA is statutorily required to conduct inspections (e.g., under RCRA). The
advance notification and consultation protocols in the State/EPA Enforcement
Agreements should incorporate any of the types of special arrangements
necessary for Federal facilities. The protocols should also address how the State
will be involved in the review of Federal agency A-106 budget submissions, and
include plans for a joint annual review of patterns of compliance problems at
Federal facilities in the State.
c. Criminal Enforcement
Although the Policy Framework does not apply to the criminal enforcement
program, to improve the coordination with States on criminal investigations and
assist the States in their criminal enforcement efforts, the Regions should discuss
with States any affirmative plans for cross-referrals and cooperative criminal
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investigations. Such discussions should include the Special Agent in Charge and
appropriate program staff familiar with criminal enforcement.
In cases where other States or jurisdictions may be directly and materially affected by the
violation, i.e., environmental or public health impacts, EPA's Regional Offices should attempt to
notify all of the States that are interested parties or are affected by the enforcement action
through the communication channels established by the State agreements, working through the
appropriate Regional Office. This notification process is particularly important for hazardous
waste cases in which regulatees often operate across State boundaries.
Protocols for advance notification must be established with the understanding that each
party will respect the other's need for confidentiality and discretion, in regard to the information
being shared where it is appropriate. Continuing problems in this regard will be cause for
exceptions to the basic principle of advance notification.
Many of our statutes or regulations already specify procedures for advance notification of
the State. The State/Federal agreements are intended to supplement these minimum
requirements.
2. Establishment of a Consultative Process
Advance notification is only an essential first step and should not be construed as the
desired end result of these State/Federal agreements. The processes established should be
consultative and should be designed to achieve the following:
a. Inspections
Advance notice to States through sharing of lists of planned Federal inspections
should be designed so that State and Federal agencies can properly coordinate the
scheduling of site inspections and facilitate joint or multi-media inspections as
appropriate. This should generally be done for all programs whether or not they
are delegated, except for investigative inspections which would be jeopardized by
this process.
b. Enforcement Actions
Federal and State officials must be able to keep one another current on the status
of enforcement actions against noncomplying facilities. Regularly scheduled
meetings or conference calls at which active and proposed cases and inspections
are discussed may achieve these purposes.
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3. Sharing Compliance and Enforcement Information
The Region and State should discuss the need for a process to share, as much as
practicable, inspection results, monitoring reports, evidence, including testimony, where
applicable for Federal and/or State enforcement proceedings. The Regions should also establish
mechanisms for sharing with the States copies of reports generated with data submitted by the
Regions and States, including comparative data — other States in the Region and across Regions.
4. Dispute Resolution
The Region and State should agree in advance on a process for resolving disputes,
especially differences in interpretation of regulations or program goals as they may affect
resolution of individual instances of noncompliance. As stated in the policy on Performance-
Based Assistance, the purpose in laying out a process by which issues can be quickly surfaced up
the chain of command in both the Regions and States is to ensure that significant problems
receive the prompt attention of managers capable of solving these problems expeditiously.
5. Publicizing Enforcement Activities
EPA has made commitments to account publicly for its compliance and enforcement
programs. It is EPA's policy to publicize all judicial enforcement actions and significant
administrative actions to both encourage compliance and serve as a deterrent to noncompliance.
While State philosophies on these matters may vary, the Region and State should discuss
opportunities for joint press releases on enforcement actions and public accounting of both State
and Federal accomplishments in compliance and enforcement.
Discussions should address how and when this coordination would take place. Regions
should consult with the State on any enforcement related EPA press release or other media event
which affects the State. To the extent possible, the State should be given an opportunity to join in
the press release or press conference if it has been involved in the underlying enforcement
action. Further, EPA generated press releases and public information reports should
acknowledge and give credit to relevant State actions and accomplishments when appropriate.
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6. Publicly Reported Performance Data
Regions should discuss with States mechanisms for ensuring the accuracy of data used to
generate monthly, quarterly and/or annual reports on the status of State and Federal compliance
and enforcement activities. Opportunities should be provided to verify the accuracy of the data
with the States prior to transmittal to headquarters. Time constraints may be a real limitation on
what can be accomplished, but it is important to establish appropriate checks and control points
if we are to provide an accurate reflection of our mutual accomplishments. If there are no data
accuracy concerns, these mechanisms may not be needed.
F. STATE REPORTING
This section reviews key reporting and recordkeeping requirements for management data
and public reporting on compliance and enforcement program accomplishments. It also
addresses related reporting considerations such as reporting frequency and quality assurance.
1. Overview
A strong and well managed national compliance and enforcement program needs reliable
performance information on which to judge success and identify areas needing management
attention. The following outlines the reporting and recordkeeping framework for monitoring
enforcement and compliance program performance. The information will be used by the
Agency's chief executives to manage EPA operations, and to convey our combined Federal and
State performance record to others outside the Agency. This framework is limited in its
application to information gathered for management purposes. It is not intended to apply to the
environmental data and reporting on a source-by-source basis which is gathered routinely by the
Agency from Regions and States under its source reporting programs and ongoing operations.
The framework should serve as a stable guide to the national programs as they develop, in
cooperation with the Regions and States, the measures and reporting requirements they will use
to assess performance in implementing national compliance and enforcement
programs.
Five measures of compliance and enforcement performance will be used for reporting
purposes, identified in sequence below. The first two measure compliance results: (1) overall
compliance rate for the regulated community; and (2) correction of the most significant
violations. The Agency is working diligently to establish clear and reliable indicators for these
two measures, recognizing the desirability of managing based as much as possible on results.
While it is most desirable to find ways to ultimately examine the environmental benefits of
compliance and enforcement actions, i.e., pollution levels reduced, this will not be accomplished
in the near term.
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The two compliance results measures are supplemented with three measures of
enforcement activity: (3) inspection levels as an indicator of the reliability of compliance data
and as an indicator of field presence for deterrence purposes; (4) formal administrative
enforcement actions undertaken; and (5) judicial referrals and filed court cases, the latter two
measures of enforcement activities both serving as indicators of enforcement strength and the
will to enforce.
In addition to these five reporting requirements, the Agency is introducing two new areas
of recordkeeping requirements to support general management oversight of the national
enforcement effort: (1) success in meeting new management milestones for defining timely and
appropriate enforcement action; and (2) the level of penalties assessed and collected. Records
should be maintained by States and Regions for review during the course of the year and to
support an assessment at the end of the year on how well the agencies have done and how
appropriate performance expectations might best be defined.
2. Reported Measures of Performance
Programs and Regions should ensure the first five measures of performance are required
to be reported on a quarterly basis:
a. Compliance levels can be measured according to several different
approaches. National program guidance should describe the approach each
has selected as most appropriate given the characteristics of its program
and regulated community. Each program should, at a minimum, report full
physical compliance rates and also distinguish where relevant in reporting
compliance levels between final "physical" compliance (compliance with
emissions limits) and "paper" compliance (violation of emissions limits
but following a compliances schedule).
b. Progress in Returning Significant Violations to Compliance Each program
in putting together its guidance should specifically define what it measures
as significant violations. Lists of significant violators should be compiled
jointly by the Region and State. The Agency has two indicators of
performance in this area. One is a static measure of progress against a
beginning-of-year backlog of significant violators not yet brought into
compliance. The second is a dynamic balance sheet which adds to the
beginning-of-year inventory any new significant violators as they are
found and keeps a running tally of those for which a formal enforcement
action was taken, those which were brought into compliance, or those
which remain, pending enforcement action.
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Each program should also anticipate being required to set quarterly
targets for reduction of its beginning-of-year backlog of significant
violators. Targets will be set for States and Regions on the basis of either
returning the violator to compliance or taking a formal enforcement action
which will lead to expeditious physical (full) compliance. Reporting of
progress against significant violations will be set on the basis of these
same two categories of response. In developing its guidance, each
program should specify the types of enforcement actions which qualify as
having taken "a formal enforcement action."
c. Inspections are conducted for many purposes, including confirmation of
compliance levels. Reporting on inspections has been a long standing
practice. Regions and States should be asked to provide specific quarterly
commitments and reporting on the number of inspections to be conducted.
Where programs have broken down inspection reporting into different
classes to reflect the different purposes (for example, sample inspections,
"walk-through," or records check inspections) this reporting is expected to
continue. Each program, as it draws up its guidance, should be as clear
and specific as possible in defining the different categories of inspection
activity to be reported.
d. Formal administrative enforcement actions will be reported as the critical
indicator of the level of administrative enforcement activity being carried
on by environmental enforcement agencies. It is not our intention to
provide a comprehensive reporting of all actions, both informal and
formal, being taken to secure compliance. At the same time, it is
recognized that there are many different informal techniques used which
succeed in getting sources to return to compliance. What is sought here is
a telling indicator which will keep reporting as clear-cut and
unburdensome as possible.
In preparing its guidance each program should list the specific
actions to be included under this reporting area. Each program should be
guided by the characteristics of a formal administrative action set forth in
Section B on "Timely and Appropriate Enforcement Action." For
programs without formal administrative authority, such as Drinking
Water, other surrogate measures should be defined.
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e. Judicial Actions is an area where there has been a long standing practice
of
Federal reporting with no corresponding State data. Commensurate with
current reporting practices within EPA, the number of State civil referrals
and filed cases will now be reported. We will also now include criminal
judicial actions. These should be reported as a separate class and be
counted only after they are filed in court in recognition of their sensitive
nature.
3. Recordkeeping for Performance Measurement
There are two performance areas for which States and Regions will be asked to retain
accessible records and summary data: (1) timeliness and appropriateness of response to
violations; and (2) penalties. These categories of information will be considered for future
development as measures for possible inclusion in the Agency's management and reporting
systems.
a. Timeliness and appropriateness of State and Federal response to violations
is the principal subject of new guidance being developed by each program.
Administering agencies need to ensure that adequate tracking systems are
in place to assess the timeliness and appropriateness of actions on an
ongoing basis. Implementation of timely and appropriate criteria should
also be closely monitored to ensure that sources subject to the guidance
are properly identified and made part of the covered universe. The
Program Offices, in conjunction with the Regions, are expected to report
periodically on both EPA's and the States' performance in meeting the
timely and appropriate criteria and to periodically reassess the criteria. As
programs gain experience, they should consider whether "timeliness"
should be measured quantitatively as a performance accountability
measure or qualitatively through program audits.
b. Penalty programs are essential to the effective working of an
environmental enforcement program. Sufficient documentation needs to
be kept to enable the Region to evaluate whether the State obtained a
penalty where appropriate, the State's rationale for the penalty, and, where
appropriate, a calculation of any economic benefit of noncompliance
gained by the violator. Records need to be kept of the number and amount
of penalties issued by State and Federal program offices regularly
assessing penalties, both those assessed and collected. These records and
summary data should be available for review at the time of annual
program audits and, in the event of information requests
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by external groups, on the extent of penalties assessed at any point in time.
Each program office in preparing its guidance should specifically address
the need for recordkeeping on penalties.
4. Future Improvements in Enforcement Management Information Systems
EPA is working to fill the gaps in its current enforcement management information and is
developing a guide to State and national program managers in setting priorities for future design
and development work on these systems.
In the near term, EPA is exploring ways to use the current management systems to better
reinforce timely and appropriate enforce response and follow-through on enforcement actions.
EPA Program Offices, in consultation with Regions and States, should develop ways to better
measure and report on timeliness of enforcement actions. The focus for follow-through will be
on tracking compliance with EPA consent decrees and administrative orders. State follow-
through will be part of general regional oversight.
Other potential enforcement management indicators, such as the deterrence effects of
enforcement, the quality of enforcement actions, an extended compliance picture, and overall
environmental results of enforcement actions, are longer term issues to be considered after the
near-term issues are addressed.
5. Reporting Considerations
There are three areas for special consideration by the programs as they put together their
guidance on reporting requirements:
a. Quality assurance and quality control of reported data is essential as these
are the critical indicators of program performance which will be used in
making program management decisions of priority, resource levels, and
direction. This information must be as reliable as possible. Quality
assurance and quality control of data encompasses three types of activities
including: (1) setting up initial reporting procedures; (2) building in
information review and confirmation loops; and (3) conducting routine
audits and reviews of reports and reporting systems. Each program in
preparing its guidance should describe the safeguards it uses in its
reporting, review and confirmation procedures, and describe the audit
protocols it will use to ensure the reliability of enforcement and
compliance data.
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b. The frequency of formal reporting should be done on a quarterly basis unless
there is a specific performance problem in a State or compelling program need
for more frequent (e.g., monthly) reporting, which may be necessary on an
interim basis due either to newness or their importance. A quarterly reporting
frequency is designed for oversight purposes. It is not designed to provide for
"real time" information, that is, instant access to information on the status of a
case. However, it is anticipated that formal reporting will be supplemented with
more frequent informal communications, such as monthly conference calls,
between the Regions and States on the progress of key cases of concern.
Federal facility compliance data should be reported as part of each program's
reporting measures and commitments. The Regions may also request States to
provide additional information on Federal facilities compliance status, if needed,
and if mutual agreement can be reached, as part of the Enforcement
Agreements process.
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APPENDIX A: ANNUAL PRIORITIES AND PROGRAM GUIDANCE
Annual Priorities for Implementing Agreements
FY 1985: Given the enormity of the task in the first year, three priorities were established:
defining expectations for timely and appropriate enforcement action;
• establishing protocols for advance notification and consultation; and
• reporting State data.
FY 1986: Building on the FY 1985 process, three areas were emphasized:
• expanding the scope of the agreements process to cover all delegable
programs;
adapting national guidance to State-specific circumstances; and
• ensuring a constructive process for reaching agreement.
FY 1987: Continuing to refine the approaches and working relationships with the States,
three areas are to be emphasized:
• improving the implementation and monitoring of timely and appropriate
enforcement response with particular emphasis on improving the use of
penalty authorities;
• improving the involvement of States Attorneys General (or other
appropriate legal staff) in the agreements process; and
• implementing the revised Federal Facilities Compliance Strategy.
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APPENDIX A, Page 1 of 2
EXISTING OR PLANNED NATIONAL GUIDANCE AFFECTING STATE/EPA
ENFORCEMENT AGREEMENTS PROCESS
Revised 8/14/86
Cross-cutting National Guidance: C Revised Policy Framework for State/Federal Enforcement
Agreements—reissued 8/86
C Agency-wide Policy on Performance-Based Assistance—issued by Admin. 5/31/85
NOTE: Underlining represents guidance still to be issued.
NPDES Drinking Water Air RCRA FIFRA Fed. Fac.
WSG28
43
National Guidance Oversight
of NPDES Programs 1987"
(issued 4/18/86)
Final Regulation Definition of
non-compliance reported in
QNCR (issued 8/26/85)
QNCR Guidance (issued 3/86)
Inspection Strategy and
Guidance (issued 4/85)
Revised EMS ~ Enforcement
Management System (issued
3/86)
NPDES Federal Penalty Policy
(issued 2/11/86)
Strategy for issuance of
NPDES permits (issued 2/86)
o "FY 85 Initiatives on
Compliance Monitoring &
Enforcement Oversight"
o "Final Guidance on PWS
Grant Program Implementation"
(3/20/84)
o Regs - NIPDWR, 40 CFR
Part 141 and 142
o DW annual Reporting
Requirements ~ "Guidance for
PWSS Program Reporting
Requirements" (7/9/84)
o "FY's 85-86 Strategy for
Eliminating Persistent Violations
at Community Water Systems"
memo from Paul Baltay (3/18/85)
o Guidance for the
Development of FY 86 PWSS
State Program Plans and
Enforcement Agreements"
(issued 7/3/85)
o "Guidance on Timely &
Appropriate...for Significant
Air Violators" (6/28/84)
o "Timely and Approp.
Enforcement Response
Guidance" (4/11/86)
o National Air Audit
System Guidelines for FY
1986 (issued 2/86)
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o "Guidance on Federally -
Reportable Violations"
(4/11/86)
o Inspection Frequency
Guidance (issued 3/19/85
and reissued 6/11/86)
o "Final Technical
Guidance on Review and
Use of Excess Emission
Reports" memo from Ed
Reich to Air Branch Chiefs -
Guidance for Regional
Offices (issued 10/5/84)
o "Interim National
Criteria for a Quality
Hazardous Waste
Management Program
under RCRA" (reissued
6/86)
o "RCRA Penalty Policy"
(5/8/84)
o FY 1987 "RCRA
Implementation Plan"
(reissued 5/19/86)
o "RCRA Enforcement
Response Policy" (issued
12/21/84) (to be revised by
12/86)
o "Compliance and
Enforcement Program
Descriptions in Final
Authorization Application
and State Enforcement
Strategies," memo from
Lee Thomas to RAs
(issued 6/12/84)
o Final FY 87
Enforcement &
Certification Grant
Guidance (issued
4/18/86)
o Interpretative Rule -
FIFRA State Primacy
Enforcement
Responsibilities" 40
FR Part 173 (1/5/83)
o FF Compliance
Strategy (to be issued
10/86)
o FF Prog. Manual for
Implementing CERCLA
Responsibilities of
Federal Agencies
(draft/85: to be issued
in final after CERCLA
reauthorization)
WSG27
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APPENDIX A
Page 2 of2
NPDES Drinking Water Air RCRA FIFRA Fed. Fac.
o "Guidance on FY 86 UIC
Enforcement
Agreements" ICPG #40
(issued 6/28/85)
o "FY 87 SPMS & OWAS
Targets for the PWSS
Program (SNC definition)
(issued 7/10/86)
o Guidance on FY 87 UIC
Enforcement Agreements
(draft issued 7/1/86)
o Guidance on FY 87 PWSS
Enforcement Agreements
(issued 8/8/86)
o Guidance on the Use of
AO Authority under
SDWA Amendments (to
be issued pending
legislation)
o "Technical Guidance
on the Review and
use of Coal Sampling
and Analysis Data"
EPA-340/1-82-010
issued 10/30/85
Guidance for Regional
Offices
o Compliance
Monitoring &
Enforcement Log -
- form for
recording monthly
compliance data
from States &
Regions
o Technical
Enforcement
Guidance on
Ground Water
Monitoring
(Interim final 8/85)
o Compliance order
Guidance for
Ground Water
Monitoring
(issued 8/85)
o Loss of Interim
Status Guidance
(issued 8/85)
WSG27
APPENDIX B*
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Page 1 of 6
EPA POLICY ON IMPLEMENTING NATIONALLY MANAGED OR
COORDINATED ENFORCEMENT ACTIONS
This policy addresses how EPA will handle the small subset of federal civil enforcement
cases, both administrative and judicial, which are managed or coordinated at the EPA
Headquarters level. The policy was developed to ensure these actions are identified, developed
and concluded consistent with the principles set forth in the Policy Framework for State/EPA
Enforcement "Agreements." It covers the criteria and process for deciding what cases might be
best managed or coordinated nationally; the roles and relationships of EPA Headquarters and
regional offices and the States; and protocols for active and early consultation with the involved
States and Regions.
A. Criteria for Nationally Managed or Coordinated Enforcement Cases
Most enforcement cases are handled at the state, local or EPA regional level for reasons
of efficiency and effectiveness and because of the primary role that States and local governments
have in enforcement under most of the major environmental statutes. The Policy Framework
identifies several instances in which direct enforcement actions may be taken by EPA, which in
most instances will be handled by EPA Regions pursuant to the State/EPA Enforcement
"Agreements." However, some of those cases may most appropriately be managed or
coordinated at the national level by EPA Headquarters.
In addition to instances in which an EPA Region requests Headquarters assistance or lead
in an enforcement case, these "national" cases will usually arise within the context of three of the
criteria for direct EPA action mentioned in the Policy Framework:
National Precedent (legal or program precedent): the degree to which the case is
one of first impression in law or the decision is fundamental to establishing a
basic element of the national compliance and enforcement program. This is
particularly important for early enforcement cases under a new program or issues
that affect implementation of the program on a national basis.
Repeat Patterns of Violations and Violators: the degree to which there are
significant patterns of repeat violations at a given facility or type of source or
patterns of violations within multi-facility regulated entities. The latter is of
particular concern where the noncompliance is a matter of national (e.g.,
corporate) policy or the lack of sound environmental management policies and
practices at a national level which can best be remedied through settlement
provisions which affect such national policies and practices.
** Issued by the Assistant Administrator for the Office of Enforcement and Compliance
Monitoring.
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APPENDIX B, (cont'd.)
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Page 2 of 6
Interstate Issues (multiple States or Regions): the degree to which a case may
cross regional or state boundaries and may require a consistent approach. This is
particularly important where there may be a potential for interregional transfers of
pollution problems and the case will present such issues when EPA Regions or
States are defining enforcement remedies.
EPA's response to any of these circumstances can range from increased headquarters
oversight and legal or technical assistance, to close coordination of State and Regional
enforcement actions, to direct management of the case by Headquarters.
There are essentially two types of "national" cases. A nationally managed case is one in
which EPA Headquarters has the responsibility for the legal and/or technical development and
management of the case(s) from the time the development and management of the case(s) should
be nationally managed in accordance with the criteria and process set forth in this policy. A
nationally coordinated case(s) is one which preserves responsibility for lead legal and technical
development and management of the cases within the respective EPA regions and/or State or
local governments. This is subject, however, to the oversight, coordination and management by a
lead Headquarters attorney and/or program staff on issues of national or programmatic scope to
ensure that all of the cases within the scope of the nationally coordinated case are resolved to
achieve the same or compatible results in furtherance of EPA's national program and
enforcement goals.
Section C below describes more fully the roles and relationships of EPA headquarters,
regional, and state personnel, both legal and technical, in either nationally managed or nationally
coordinated cases.
There are several factors applied to assess whether, in addition to the normal
Headquarters oversight, a case should be handled as: (1) nationally managed; or (2) nationally
coordinated. None of these factors may necessarily be sufficient in themselves but should be
viewed as a whole. These factors will include:
availability or most efficient use of State or EPA Regional or Headquarters
resources;
ability of the agency to affect the outcome through alternative means. One
example is issuance of timely policy guidance which would enable the States,
local governments or EPA Regions to establish the appropriate precedent through
independent action;
WSG27
APPENDIX B, (cont'd.)
Page 3 of 6
favorable venue considerations;
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environmental results which could be achieved through discrete versus concerted
and coordinated action, such as potential for affecting overall corporate
environmental practices; and
location of government legal and technical expertise at EPA Headquarters or in
the Regions, recognizing that expertise frequently can be tapped and
arrangements made to make expertise available where needed.
To the extent possible, where cases warrant close national attention, EPA Headquarters
will coordinate rather than directly manage the case on a national basis thereby enabling Regions
and States to better reflect facility-specific enforcement considerations.
B. Process for Identifying Nationally-Managed or Coordinated Cases — Roles and
Responsibilities
EPA recognizes the importance of anticipating the need for nationally managed or
coordinated cases to help strengthen our national enforcement presence, and of widely sharing
information both on patterns of violations and violators and on legal and program precedent with
EPA Regions and States. To do this:
Headquarters program offices, in cooperation with the Office of Enforcement and
Compliance Monitoring, should use the Agency's strategic planning process to help
identify upcoming enforcement cases of national precedence and importance. They also
should develop and disseminate to Regions information on anticipated or likely patterns
or sources of violations for specific industries and types of facilities.
Regional offices are responsible for raising to Headquarters situations which pose
significant legal or program precedent or those in which patterns of violations are
occurring or which are likely to be generic industry-wide or company-wide which would
make national case management or coordination particularly effective.
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APPENDIX B, (cont'd.)
Page 4 of 6
State and local officials are encouraged to raise to EPA Regional Offices situations
identified above which would make national case management or coordination particularly
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effective.
Whether a case will be managed or coordinated at the national level will be decided by
the Assistant Administrator for Enforcement and Compliance Monitoring after full consultation
with the affected program Assistant Administrators, Regional Administrators and State or local
governments in what is intended to be a consensus building process. There will be a full
discussion among all of the parties of all of the ramifications for the program and a review of all
of the important criteria involved in the decision. In the event of a lack of consensus as to
whether the case should be managed or coordinated at the national level, the AA for OECM shall
make the determination, with an opportunity for a hearing and timely appeal to the Administrator
or Deputy Administrator by the Regional or other EPA Assistant Administrator.
The Regions will be responsible for communicating with any affected States using
mechanisms established in the State/EPA Enforcement "Agreements," to raise the possibility of
national case management or coordination and to ensure that timely information on the status of
any independent state, local or regional enforcement actions can and would be factored into the
decisions regarding: (1) whether to manage the case nationally; (2) whether to coordinate the
case nationally; (3) what legal and technical assistance might be provided in a State lead case;
and (4) what facilities to include in the action.
C. Case Development — Roles and Responsibilities
Nationally managed cases are those that are managed out of EPA Headquarters with a
lead headquarters enforcement attorney and a designated lead headquarters program contact.
Notwithstanding headquarters lead, in most instances, timely and responsive Regional office
legal and technical support and assistance is expected in developing and managing the case. In
these instances, the Regions will receive credit for a case referral (on a facility basis) for this
effort. The decision on the extent of Regional office involvement and case referral credit will be
made at the time the decision is made that the case should be nationally managed. Regions which
play a significant role in the development and/or prosecution of a case will be involved in the
decision-making process in any case settlement proceedings and the Regional Administrator will
have the opportunity to formally concur in any settlement.
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APPENDIX B, (cont'd.)
Page 5 of 6
Nationally coordinated cases are those that are coordinated out of EPA Headquarters with
lead regional and/or state or local attorneys and associated program office staff. The
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Headquarters attorney assigned to the case(s) and designated Headquarters program office
contact have clear responsibility for ensuring national issues involved in the case which require
national coordination are clearly identified and developed and in coordinating the facility-
specific actions of the regional offices to ensure that the remedies and policies applied are
consistent. This goes beyond the normal Headquarters oversight role. The Headquarters officials
have both a facilitator role in coordinating information exchange and a policy role in influencing
the outcome for the identified issues of national concern.
Whether a case is nationally managed or nationally coordinated, as a general rule if EPA
is managing a case, States will be invited to participate fully in case development, and to
formally join in the proceedings, if they so desire, by attending meetings and planning sessions.
State will be consulted on settlement decisions but will be asked to formally concur in the
settlement only if they are parties to the litigation.
On a case-by-case basis, the National Enforcement and Investigations Center (NEIC)
may be asked to play a role in either type of national case to coordinate evidence gathering,
provide needed consistency in technical case development and policy, witnesses and chain of
custody, and/or to monitor consent decree compliance.
D. Press Releases and Major Communications
A communications plan should be developed at any early stage in the process. This
should ensure that all of the participating parties have an opportunity to communicate their role
in the case and its outcome. Most important, the communications plan should ensure that the
essential message from the case (e.g., the anticipated precedents) gets sufficient public attention
to serve as a deterrent for potential future violations.
All regional and state co-plaintiffs will be able to issue their own regional, state-specific
or joint press releases regarding the case. However, the timing of those releases should be
coordinated so that they are released simultaneously, if possible.
It is particularly important that the agencies get maximum benefit from the deterrent
effect of these significant national cases through such mechanisms as:
more detailed press releases to trade publications i.e., with background
information and questions and answers
WSG27
APPENDIX B, (cont'd.)
Page 6 of 6
development of articles,
interviews with press for development of more in-depth reporting,
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press conferences,
meetings with public/environmental groups — including meetings on the
settlement of national cases which have generated intense local or national
interest,
speeches before industry groups about actions, and/or
communications with Congressional committees.
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