UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
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Date Signed: November 22, 1995
MEMORANDUM
SUBJECT: Policy on Flexible State Enforcement Responses to Small Community Violations
FROM: Steven A. Herman
Assistant Administrator
TO : Assistant Administrators
General Counsel
Regional Administrators
Deputy Regional Administrators
Regional Counsel
Regional Enforcement Coordinators
The attached Policy on Flexible State Enforcement Responses to Small Community
Violations (Small Communities Policy) implements parts of Reinventing Environmental
Regulation Initiatives 13 and 21 announced by President Clinton on March 16, 1995. These two
initiatives seek to enhance the environmental compliance of small communities and to promote
alternative strategies for communities to achieve environmental and economic goals.
Specifically, the Small Communities Policy seeks to assure States that they have, within
appropriate limits, the flexibility to design and use multimedia compliance assistance and
compliance prioritization measures as alternatives to traditional enforcement responses when
addressing a small community's environmental violations. The Small Community Policy
establishes the parameters for State small community environmental compliance assistance
programs that EPA will generally consider adequate and recommends options for States to
follow
in developing and implementing their programs, but leaves many of the details to the discretion
of States. EPA believes this approach will ensure adequate protection of public health and the
environment while affording States flexibility to develop small community environmental
compliance assistance programs tailored to local conditions and specific State needs.
Please note that this policy does not mandate action on the part of States. States are free
to offer compliance assistance or not. Should States choose, however, to offer environmental
compliance assistance to small communities, those doing so in a manner consistent with the
framework provided in this policy can generally expect EPA to defer to their actions.
I wish to thank the many commenters who reviewed the June 30, 1995 draft policy and
provided comments. The policy I issue today is a better document because of your efforts. If you
have questions or further comments, please contact Kenneth Harmon of the Chemical,
Commercial Services and Municipal Division at (202) 564-4079.
Attachments
cc: Small Community Coordinators, Regions I-X
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This policy expresses EPA's support for States'i use of enforcement flexibility to provide
compliance incentives for small communities. EPA acknowledges that States and small
communities can realize environmental benefits by negotiating, entering into, and implementing
enforceable compliance agreements and schedules that require communities to correct all of their
environmental violations expeditiously while allowing the community to prioritize among
competing environmental mandates on the basis of comparative risla. States may provide small
communities an incentive to request compliance assistance by waiving part or all of the penalty
for a small community's violations if the criteria of this policy have been met. If a State acts in
accordance with this policy and addresses small community environmental noncompliance with
compliance assistance in a way that represents reasonable progress toward compliance, EPA
generally will not pursue a separate Federal civil administrative or judicial action for penalties or
additional injunctive relief.
This policy does not apply to any criminal conduct by small communities or their
employees. To the extent that this policy may differ from the terms of other applicable
enforcement response policies, this document supersedes those policies.
Flexible State Enforcement Responses
EPA's deference to a State's exercise of enforcement discretion in response to a small
community's violations will be based on an assessment of the adequacy of the process the State
establishes and follows in:
This policy will also apply to the actions of territories and to the actions of Native
American Tribes where conditions have been met for EPA to treat the Tribe as a State.
2 EPA currently has a number of risk assessment resources available to the public,
including its computer-based Information Risk Information System (IRIS). EPA comparative
risk
projects across the country have provided training and technical assistance to more than 45 State,
local, tribal and watershed risk assessment efforts in an attempt to bring together stakeholders to
reach consensus on which local environmental problems pose the most risk to human health,
ecosystem health, and quality of life; and to develop consensus on an action plan to reduce those
risks. EPA does not suggest that States and small communities need prepare a formal
comparative risk assessment as part of the small community environmental compliance
assistance process.
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• responding expeditiously to a community's request for compliance assistance;
• selecting the communities to which it offers compliance assistance and a flexible
enforcement response;
• assessing the community's good faith and compliance status;
• establishing priorities for addressing violations; and
• ensuring prompt correction of all environmental violations.
EPA will give its deference more readily to a State that has previously submitted a
description of its small community environmental compliance assistance program to the Agency,
thereby allowing EPA to familiarize itself with the adequacy of the State's processes.
Selecting communities
EPA intends this policy to apply only to small communities unable to satisfy all
applicable environmental mandates without the State's compliance assistance. Such
communities, generally comprised of fewer than 2,500 residentss, should be:
• non-profit
• governing entities (incorporated or unincorporated)
• that own facilities that supply municipal services.
EPA's evaluation of the appropriateness of a State's small community environmental
compliance assistance program will depend in part on whether the State uses measures of
administrative, technical, and financial capacity to limit provision of the benefits of this policy to
those communities that truly need assistance. Such capacity measures could include, among
other
things, number of staff and their responsibilities, degree of isolation from other nearby
communities, evaluation of existing infrastructure, average household income, the last decade's
median housing values, employment opportunities, population projections, population age
representation, revenue sources, revenue generating capacity, the level of government that
operates the utility systems, current bond debt, and an assessment of the impact of other Federal
mandates competing with environmental mandates for the community's resources.
3 EPA selected a population figure of 2,500 to be consistent with 42 U.S.C. 6908, which
established the Small Town Environmental Planning Program, and which defined the term small
town to mean "an incorporated or unincorporated community...with a population of less than
2,500."
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Not less than quarterly, a State should provide EPA with a list of communities
participating in its small community environmental compliance assistance program to ensure
proper State and Federal coordination on enforcement activity.
Assessing good faith and compliance status
In considering whether a State has established and is following an adequate process for
assessing a small community's good faith, EPA generally will look at such factors as the
participating communities' candor in contacts with State regulators and the communities' efforts
to comply with applicable environmental requirements. Measures of a small community's efforts
to comply include:
• attempts to comply or a request for compliance assistance prior to the initiation of an
enforcement response;
• prompt correction of known violations;
• willingness to remediate harm to public health, welfare, or the environment;
• readiness to enter into a written and enforceable compliance agreement and schedule; and
• adherence to the schedule.
A State's assessment of a small community's compliance status should identify:
• every environmental requirement to which the community's municipal operations are
subject;
• the community's current and anticipated future violations of those requirements;
• the comparative risk to public health, welfare, or the environment of each current and
anticipated future violation; and
• the community's compliance options.
In addition, EPA recommends that the process developed by the State include
consideration of regionalization and restructuring as compliance alternatives, and consideration
of the impact of promulgated regulations scheduled to become effective in the future.
Priorities for addressing violations
States seeking EPA's deference should require small communities to correct any
identified violations of environmental regulations as soon as possible, taking into consideration
the community's administrative, technical, and financial capacities, and the State's ability to
assist in strengthening those capacities. A small community should address all of its violations in
order
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of risk-based priority/i. Any identified violation or circumstance that may present an imminent
and substantial endangerment to, has caused or is causing actual serious harm to, or presents a
serious threat to, public health, welfare, or the environment is to be addressed immediately in a
manner that abates the endangerment or harm and reduces the threat. Activities necessary to
abate the endangerment or harm and reduce the threat posed by such violations or circumstances
are not to be delayed while the State and small community establish and implement the process
for assigning priorities for correcting other violations.
Ensuring prompt correction of violations
If the small community cannot correct all of its violations within 180 days of the State's
commencement of compliance assistance to the community, the State and the community should,
within 180 days of the State's commencement of compliance assistance to the community, enter
into and begin implementing a written and enforceable compliance agreement and schedules that:
• establish a specified period for correcting all outstanding violations in order of risk-based
priority e;
• incorporate interim milestones that demonstrate reasonable progress toward compliance;
• contain provisions to ensure continued compliance with all environmental requirements
with which the community is in compliance at the time the agreement is entered; and
• incorporate provisions, where they would be applicable to the small community, to
ensure
future compliance with any additional already promulgated environmental requirements
that will become effective after the agreement is signed.
Consultation with EPA during the drafting of a compliance agreement and schedule and
the forwarding of final compliance agreements and schedules to EPA are recommended to
ensure
appropriate coordination between the State and EPA.
4 EPA does not intend that establishment of risk-based priorities be viewed as mandating
delay in addressing low priority violations that can be easily and quickly corrected without
affecting progress toward addressing higher priority violations requiring long term compliance
efforts.
Neither a State nor a community may unilaterally alter or supersede a community's
obligations under existing Federal administrative orders or Federal judicial consent decrees.
6 States may allow weighing of unique local concerns and characteristics, but the process
should be sufficiently standardized and objective that an impartial third person using the same
process and the same facts would not reach significantly different results. Public notification and
public participation are an important part of the priority setting process.
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Limits on EPA Deference
EPA reserves all of its enforcement authorities. EPA will generally defer to a State's
exercise of its enforcement discretion in accordance with this policy, except that EPA reserves
its
enforcement discretion with respect to any violation or circumstance that may present an
imminent and substantial endangerment to, has caused or is causing actual serious harm to, or
presents a serious threat to, public health, welfare, or the environment7.
The Policy on Flexible State Enforcement Responses to Small Community Violations
does not apply if, in EPA's judgement:
• a State's small community environmental compliance assistance program process fails to
satisfy the adequacy criteria stated above; or
• a State's application of its small community environmental compliance assistance
program process fails in a specific case adequately to protect public health and the
environment because it neither requires nor results in reasonable progress toward, and
achievement of, environmental compliance by a date certain.
Where EPA determines that this policy does not apply, and where EPA has reserved its
enforcement discretion, other existing EPA enforcement policies remain applicable. The State's
and EPA's options in these circumstances include discretion to take or not take formal
enforcement action in light of factual, equitable, or community capacity considerations with
respect to violations that had been identified during compliance assistance and were not
corrected. Neither the State's actions in providing, nor in failing to provide, compliance
assistance shall constitute a legal defense in any enforcement action. However, a community's
good faith efforts to correct violations during compliance assistance may be considered a
mitigating factor in determining the appropriate enforcement response or penalty in subsequent
enforcement actions.
Nothing in this policy is intended to release a State from any obligations to supply
EPA with required routinely collected and reported information. As described above, States
should provide EPA with lists of participating small communities and copies of final
compliance agreements and schedules. States should also give EPA immediate notice upon
discovery of a violation or circumstance that may present an imminent and substantial
endangerment to, has caused or is causing actual serious harm to, or presents serious threats
to, public health, welfare, or the environment.
7 EPA will regard any unaddressed violation or circumstance that may present an
imminent and substantial endangerment to, has caused or is causing actual serious harm to, or
presents a serious threat to, public health, welfare, or the environment in a small community
participating in a State environmental compliance assistance program as a matter of national
significance which requires consultation with or the concurrence of, as appropriate, the Assistant
Administrator for Enforcement and Compliance Assurance or his or her delegatee before
initiation of an EPA enforcement response.
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This policy has no effect on the existing authority of citizens to initiate a legal action
against a community alleging environmental violations.
This policy sets forth factors for consideration that will guide the Agency in its exercise
of enforcement discretion. It states the Agency's views as to how the Agency intends to allocate
and structure enforcement resources. The policy is not final agency action, and is intended as
guidance. This policy is not intended for use in pleading, or at hearing or trial. It does not create
any rights, duties, obligations, or defenses, implied or otherwise, in any third parties.
Policy Assessment
Measuring the success of compliance assistance programs is a critical component of
EPA's ability to assess the results of compliance and enforcement activities. EPA will work with
States to evaluate the effectiveness of the Policy on Flexible State Enforcement Responses to
Small Community Violations. Within three years following its issuance, EPA will consider
whether the policy should be continued, modified, or discontinued.
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