UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG47
Date Signed: November 15, 1989
MEMORANDUM
SUBJECT: Implementation of Enforcement Provisions in the EPA Federal
Facilities Compliance Strategy
FROM: Edward E. Reich (signed by Edward E. Reich)
Acting Assistant Administrator
TO: Deputy Assistant Administrators
Deputy Regional Administrators
The EPA Federal Facilities Compliance Strategy (i.e., the "Yellow Book") was signed by
the EPA Administrator in November, 1988. The Strategy is the primary EPA policy and
guidance document which outlines our approach for understanding compliance monitoring and
enforcement activities at Federal facilities. The provisions of the Strategy became effective
immediately but there are certain items which require more detailed follow-up guidance to ensure
that they are consistently implemented across all media programs and Regions. The following
enforcement-related provisions are in need of additional guidance to ensure proper
implementation of the Federal facilities program:
(1) applicability of media "timely and appropriate"
guidelines for Federal facilities;
(2) program definitions of what constitutes "formal
enforcement actions" for Federal facilities; and
(3) submission of Federal facilities enforcement actions
to EPA Headquarters.
o "Timely and Appropriate" Enforcement Guidance
The Strategy clarifies that the media program "timely and appropriate" enforcement
response timeframes apply fully to Federal facilities. The guidance emphasizes the negotiation
of either consent orders or compliance agreements within the required media-specific timeframes
for issuance of formal enforcement actions. Program guidance should specify that where EPA
has statutory administrative order authority for Federal facilities, consent orders will be the
preferred enforcement mechanism and, where such authority does not exist, compliance
agreements will be utilized. Chapter VI, Section B.I .c. of the Strategy further clarifies that "if
compliance is not achieved or a compliance agreement or consent order cannot be negotiated
1
-------
WSG47
within required media-specific timeframes, EPA generally will issue a proposed order or
proposed compliance agreement..." This is the equivalent of the point in the enforcement process
where EPA normally would issue a unilateral administrative order or a referral for a non-Federal
entity. A "proposed consent order" or "proposed compliance agreement" should contain the same
type and level of information as a unilateral order; e.g., schedules for achieving compliance,
corrective actions which need to be taken, reporting requirements, etc. It represents EPA's
"bottom line" to the Federal facility on what it expects them to do to correct the violation and the
desired timeframes for accomplishing the fix. The procedures and timeframes for negotiation
and issuance of proposed compliance agreements or proposed consent orders are explained in
detail in Chapter VI, Sections B.l.d. and e of the "Yellow Book." Each media program
compliance office needs to revise its "timely and appropriate" guidance to clarify that the
timeframes for achieving compliance and issuing enforcement actions apply to Federal facilities
the same as all other regulated entities.
o Definition of "Formal Enforcement Action"
For accountability purposes, however, there are some differences for Federal facilities in
terms of what constitutes a "formal enforcement action" since there are constraints on EPA's
ability to issue unilateral orders to Federal facilities. There are two ways for EPA Regions to
meet the definition of formal enforcement for Federal facilities actions:
(1) Negotiation of a consent order or compliance
agreement signed by both the EPA Region and the
affected Federal facility within the applicable
media-specific timeframe for formal enforcement
action; or
(2) Issuance of a proposed consent order or proposed
compliance agreement to the Federal facility when
the applicable timeframe has expired and
subsequent escalation and formal referral of the
dispute to EPA Headquarters for resolution.
As outlined in Chapter VI, B.l.f. of the Strategy, "the formal referral shall be sent to EPA
Headquarters within 60 days after the established media timeframe for formal enforcement action
has been exceeded and the Federal facility has failed to sign a proposed order or proposed
compliance agreement." Where necessary, Headquarters media program offices should revise
their existing "timely and appropriate" guidance so that the Regions are getting proper credit for
formal enforcement actions at Federal facilities for accountability purposes, even if such actions
maybe different than those EPA would take at non-Federal facilities.
o Submission of Enforcement Actions to Headquarters
The Strategy requires that the Regional media program offices submit copies of all EPA
-------
WSG47
Federal facilities enforcement actions to EPA Headquarters. EPA has instituted this process to
enable Headquarters offices of other agencies to become aware of violations at their facilities in a
timely manner. This should help to ensure that appropriate pressure can be provided to help
correct identified problems as expeditiously as possible.
This reporting requirement has been set forth in the Federal Facilities Compliance
Strategy, Chapter V, Section C.2 "Regional Reporting of Inspection and Enforcement Activities
at Federal Facilities," as follows:
EPA's Regional media program offices will submit copies of
NOV's and other enforcement actions issued to Federal facilities to
EPA Headquarters. This information will be submitted to the
appropriate Headquarters media enforcement office with copies
sent to the Office of Federal Activities and the Regional Federal
Facilities Coordinator. EPA will formally transmit this
information to the Headquarters offices of the affected Federal
agencies. Arrangements shall be made between OFA and each
EPA media program regarding how and when this information
shall be transmitted to the other Federal agencies. The transmittal
shall explain that they have a compliance problem or violation at
one of their facilities and request that they take appropriate action
to help expedite resolution and correct the identified violation.
Through our review of media program compliance data bases and SPMS reporting, we
are aware of over 100 notices of violation (NOV's) and other enforcement actions that were
issued to Federal facilities during the first two quarters of FY '89 and yet OFA Headquarters has
received only a handful of copies of these actions from the Regions. The Regional offices need
to implement this "Yellow Book" requirement immediately. At a minimum, the media program
offices should provide copies directly to the Regional Federal Facilities Coordinator, who will
subsequently transmit them to OFA.
In addition, we are requesting that each Headquarters media program office instruct its
Regional offices in writing to send copies of all EPA enforcement actions for Federal facilities to
their respective Headquarters compliance offices and OFA. We will discuss with the media
program offices OFA's plans to send copies to the Headquarters offices of the effected Federal
agencies. OFA will include these copies with its Quarterly Compliance Status Reports (QCRS)
(Attachment 2) which it has already begun to transmit to each Federal agency. These QCSR's
consist of name lists of all RPA and State inspections conducted, violations identified, and
enforcement actions taken at their agency's facilities during the preceding quarter. Including hard
copies of enforcement actions should help the Federal agency headquarters offices gain an
improved understanding of the exact nature of the problem and violation which has occurred.
This should assist them in both the general oversight of their facilities and in providing timely
assistance to correct the identified violations.
-------
WSG47
Another related area in need of clarification is the referral process for Federal facilities
disputes being transmitted from the Regions to EPA Headquarters. In the Strategy, Chapter
VI.B.l.f — "Federal Facilities Dispute Resolution Process," explains that disputes are to "be
formally referred by the Regional Administrator to the Assistant Administrator (AA) for the
affected media program and the AA for Office of Enforcement and Compliance Monitoring."
These are considered to be joint referrals to both the lead media program office and OECM. To
date, we have had some problems with RA referrals coming solely to the media AA. This
procedural flow needs to be corrected for all future Federal facilities referrals. It also is
important to emphasize that these Federal facilities referral packages should be equivalent to civil
judicial referrals which the Regions prepare for non-Federal cases. As outlined in the "Yellow
Book," the referral package should describe the identified violation, provide a historical summary
of the communications and negotiations with the facility, identify enforcement actions taken
(including any State or citizen actions), identify the unresolved issues and include appropriate
support data, with documentation similar to a litigation report. The referral package must be
signed by the EPA Regional Administrators.
One final area that needs to be re-emphasized is the need to continue to track the
compliance status of Federal facilities as a separate component in each media program
compliance database and tracking system (e.g., SPMS, HWDMS, OWAS, etc.). Some programs
already track Federal facilities separately through SPMS and their other tracking systems. Those
programs which currently do not track Federal facilities compliance status separately from other
types of regulated entities (e.g., industrial and/or municipal) need to do so as soon as practicable.
Each Headquarters program office is requested to provide a written response to this
memorandum explaining how it has addressed or plans to address the issues discussed above in
their program guidance. Please provide this response to us by November 30, 1989. The
Regional media program offices should begin providing copies of Federal Facilities enforcement
actions to their Regional Federal Facilities Coordinators immediately. If you have any questions
or would like to discuss these issues prior to your written response, please contact me or Jim
Edward, Deputy Director, Federal Facilities Compliance Staff, FTS-382-3270.
Attachment
cc: Richard Sanderson, Director, OF A, OECM
Bruce Diamond, Director, OWPE, OSWER
Jim Elder, Director, OWEP, OW
Mike Cook, Director, ODW, OW
John Seitz, Direct, SSCD, OAR
Gus Conroy, Director, OECM, OPTS
Regional Federal Facility Coordinators
Attachment could not be located. Please contact EPA staff person mentioned in document.
*Note: May need to be updated due to changes in 1996 SDWA Amendments.
------- |