11/08/88
Federal Facilities Compliance Strategy
EPA
Federal Facilities
Compliance Strategy
Office of Federal Activities
US Environmental Protection Agency
November 1988
GM - 25, was revised in November 1988. The old version has been
deleted and relevant excepts of the new document have been put in
its place in the manual. A complete copy of the strategy can be
obtained from the Office of Federal Activities.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON D.C. 20460
November 8, 1988
The US Environmental Protection Agency ( EPA ) believes that Federal
agencies have inherent obligation to comply with all Federal environmental
statutes in the same manner and degree as all other regulated entities. It
is imperative that every effort be made to ensure that Federal facilities
achieve and maintain high rates of compliance with all environmental
requirements. And it is important to EPA's compliance and enforcement
efforts at non-Federal entities that facilities of the Federal government
demonstrate that they have their "own house in order." In order to
demonstrate EPA's commitment in his important area, we have established a
new goal for our Federal Facilities Compliance Program which states that EPA
shall help "ensure that Federal agencies achieve compliance rates in each
media program which meet or exceed those of major industrial and major
municipal facilities."
To help achieve this goal, EPA has developed a new Federal Facilities
Compliance Strategy which establishes a comprehensive and proactive approach
to achieving compliance at Federal facilities. This document, also known as
the "Yellow Book", provides the basic framework and consistent guidelines
for all EPA media programs ( e.g., air, water, hazardous waste, etc. ) to
follow in their compliance and enforcement activities at Federal facilities.
It also attempts to reconcile EPA's dual responsibilities to provide
technical assistance and advice to Federal facilities pursuant to Executive
Order No. 12088, and our statutory authorities to take enforcement actions
for violations at Federal facilities in appropriate circumstances.
Recently-authorized environmental statutes have included special
requirements and additional provisions which are specific to Federal
facilities. These provisions clarify that Federal agencies must comply with
environmental laws in the same manner and degree as all other facilities
subject to such requirements. EPA intends to utilize the full range of its
available enforcement authorities to ensure compliance by Federal
facilities. However, EPA also recognizes that there are some limitations
and differences in the types of enforcement actions which EPA can take at
Federal facilities. These special circumstances have made it clear that if
EPA is to be truly effective in ensuring high compliance rates at Federal
facilities, a separate strategy such as this is needed to address this
unique subset of facilities which we regulate.
Through and consistent implementation of this Strategy should significantly
strengthen EPA's compliance and enforcement program for Federal facilities.
We will apply the same timeframes for taking enforcement action at Federal
facilities as EPA does for other facilities. We also have established a
formal dispute resolution process with strict time periods for escalation
when Compliance Agreements or Consent Orders cannot be expeditiously
negotiated between EPA Regional offices and Federal facilities.
This Strategy also emphasizes the use of innovative compliance management
techniques ( e.g., environmental auditing ), selected initiatives for
improved compliance tracking of Federal facilities and more effective use of
the Federal Agency A-106 Pollution Abatement Planning Process. In addition,
since many of EPA's programs are delegated to the States, we have devoted a
separate chapter in this document to the critical role of states in
responding to compliance problems at Federal facilities.
In closing, I would like to reiterate that EPA is very serious in its
efforts to ensure compliance by Federal facilities, and we will take all
necessary actions, including enforcement in appropriate circumstances, to
improve the environmental status of facilities of the Federal government.
Federal facilities have done much to increase the effectiveness of their
environmental management programs, but further progress is needed if Federal
facilities are to meet their obligations to comply to the fullest extent
possible with all of the environmental laws. We at EPA believe that this is
an attainable goal and look forward to working together with affected
parties in implementing this strategy and demonstrating that Federal
facilities can truly be the model for compliance which we feel they are
capable of becoming.
Nov. 8, 1988 Lee M. Thomas
____________ /s/ _____________
DATE LEE M. THOMAS
Administrator
FEDERAL FACILITIES COMPLIANCE STRATEGY
TABLE OF CONTENTS
Page
Number
INDEX OF EXHIBITS . . . . . . . . . . . . . . . . . . . . . . . . iv
LIST OF ACRONYMS AND ABBREVIATIONS . . . . . . . . . . . . . . . vii
LIST OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . . ix
EXECUTIVE SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . x
CHAPTER I - INTRODUCTION
A. PURPOSE OF THE STRATEGY . . . . . . . . . . . . . . . . . . . I-2
B. OVERVIEW OF THE STRATEGY . . . . . . . . . . . . . . . . . . I-3
CHAPTER II - SUMMARY OF RELEVANT ENVIRONMENTAL STATUTES AND EXECUTIVE
ORDERS
A. FEDERAL FACILITY COMPLIANCE WITH STATE AND LOCAL POLLUTION
CONTROL STATUTES . . . . . . . . . . . . . . . . . . . . . . II-1
B. FEDERAL ENVIRONMENTAL STATUTES . . . . . . . . . . . . . . . II-2
B.1 Clean Air Act . . . . . . . . . . . . . . . . . . . . . II-2
B.2 Clean Water Act . . . . . . . . . . . . . . . . . . . . II-2
B.3 Resource Conservation and Recovery Act . . . . . . . . . II-4
B.4 Federal Insecticide, Fungicide, and
Rodenticide Act . . . . . . . . . . . . . . . . . . . . II-5
B.5 Toxic Substance Control Act . . . . . . . . . . . . . . II-6
B.6 Comprehensive Environmental Response,
Compensation, and Liability Act . . . . . . . . . . . . II-6
B.7 Safe Drinking Water Act . . . . . . . . . . . . . . . . II-7
C. EXECUTIVE ORDERS . . . . . . . . . . . . . . . . . . . . . . II-8
C.1 Executive Order 10288 - Federal Compliance with
Pollution Control Standards . . . . . . . . . . . . . . II-8
C.2 Executive Order 12146 - Management of Federal
Legal Resources . . . . . . . . . . . . . . . . . . . . II-9
C.3 Executive Order 12580 - Superfund Implementation . . . . II-9
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Page
Number
CHAPTER III - IDENTIFICATION OF THE REGULATED COMMUNITY
A. DEFINITION OF A FEDERAL FACILITY . . . . . . . . . . . . . . . III-1
B. STRATEGY FOR IDENTIFYING AND TRACKING THE
UNIVERSE OF FEDERAL FACILITIES . . . . . . . . . . . . . . . . III-1
B.1 Identifying the Types of Federal Facilities
in the Regulated Community . . . . . . . . . . . . . . . III-2
B.2 Improved Use of Available Information and
Existing Data Systems . . . . . . . . . . . . . . . . . . III-2
B.3 Special Initiatives . . . . . . . . . . . . . . . . . . . III-4
CHAPTER IV - COMPLIANCE PROMOTION, TECHNICAL ASSISTANCE AND TRAINING
A. COMPLIANCE PROMOTION . . . . . . . . . . . . . . . . . . . . . IV-1
A.1 Information Transfer . . . . . . . . . . . . . . . . . . IV-1
A.2 Identifying Compliance Patterns of
Federal Agencies . . . . . . . . . . . . . . . . . . . . IV-2
A.3 Environmental Auditing. . . . . . . . . . . . . . . . . . IV-3
B. TECHNICAL ASSISTANCE AND TRAINING . . . . . . . . . . . . . . . IV-5
B.1 Technical Assistance . . . . . . . . . . . . . . . . . . IV-5
B.2 EPA "Hotline" Assistance . . . . . . . . . . . . . . . . IV-6
B.3 Federal Facilities Compliance Program
Assistance and Oversight . . . . . . . . . . . . . . . . IV-7
B.4 Training Opportunities for Federal Facilities
Compliance Personnel . . . . . . . . . . . . . . . . . . IV-7
CHAPTER V - COMPLIANCE MONITORING
A. OBJECTIVES OF COMPLIANCE MONITORING ACTIVITIES . . . . . . . . V-1
B. SOURCE SELF-MONITORING, REPORTING AND
RECORDKEEPING REQUIREMENTS . . . . . . . . . . . . . . . . . . V-2
C. INSPECTION STRATEGY FOR FEDERAL FACILITIES . . . . . . . . . . V-3
C.1 Annual Inspection Planning . . . . . . . . . . . . . . . V-4
C.2 Regional Reporting of Inspection and Enforcement
Activities at Federal Facilities . . . . . . . . . . . . V-4
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Page
Number
C.3 Identification of Environmentally
Significant Federal Facilities for
Multi-Media Inspections . . . . . . . . . . . . . . . . . V-4
C.4 Coordination with States on Federal
Facilities Inspections . . . . . . . . . . . . . . . . . V-5
C.4.a Annual Meeting with States on
Federal Facilities Compliance . . . . . . . . . V-5
C.4.b State Reporting on Federal Facility
Compliance Status . . . . . . . . . . . . . . . V-5
D. ACCESS TO FACILITIES REQUIRING SECURITY
CLEARANCES . . . . . . . . . . . . . . . . . . . . . . . . . . V-6
E. SUBMISSION AND REVIEW OF FEDERAL AGENCY A-160
POLLUTION ABATEMENT PLANS AND PROJECTS . . . . . . . . . . . . V-6
E.1 Identification of Priority Projects . . . . . . . . . . . V-7
E.1.a A-106 Compliance Class . . . . . . . . . . . . V-7
E.1.b Targeting Resources to Address
Priority Areas . . . . . . . . . . . . . . . . V-8
E.2 A-106 Process Overview and Time Table . . . . . . . . . . V-8
E.3 State Participation in the A-106 Process . . . . . . . . V-10
CHAPTER VI - ENFORCEMENT RESPONSE TO COMPLIANCE PROBLEMS AND
VIOLATIONS OF ENVIRONMENTAL LAWS AT FEDERAL FACILITIES
A. OVERALL COMPLIANCE POLICY AND PHILOSOPHY . . . . . . . . . . . VI-2
B. EPA RESPONSE TO FEDERAL FACILITIES VIOLATIONS . . . . . . . . VI-3
B.1 Federal Facilities Compliance Process: Civil
Administrative Enforcement Procedures . . . . . . . . . . VI-4
B.1.a Notification of Violation . . . . . . . . . . . VI-4
B.1.b Response by Federal Facilities:
Certification of Compliance or
Remedial Action Plans . . . . . . . . . . . . . VI-5
B.1.c Initial Negotiation of Compliance
Agreements or Consent Orders . . . . . . . . . VI-5
B.1.d Issuance of Proposed Consent Orders
or Proposed Compliance Agreements . . . . . . . VI-6
B.1.e Internal EPA Dispute Resolution Procedures . . VI-8
B.1.f Federal Facilities Dispute
Resolution Process . . . . . . . . . . . . . . VI-10
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Page
Number
B.1.g Use of Executive Order 12088 -
Federal Compliance with Pollution
Control Standards . . . . . . . . . . . . . . VI-11
B.1.h Use of E.O. 12146-Resolution of Interagency
Use of Legal Disputes . . . . . . . . . . . . VI-12
B.1.i Use of Other Dispute Resolution
Procedures for Violations of Signed
Agreements or Consent Orders . . . . . . . . VI-11
B.1.j Impact of Funds Availability on
Achieving Compliance and Negotiating
Compliance Schedules . . . . . . . . . . . . VI-12
B.1.k Exemptions . . . . . . . . . . . . . . . . . VI-13
B.2. Enforcement Actions for Violations at
Federal Facilities Directed at Non-Federal
Parties . . . . . . . . . . . . . . . . . . . . . . . . VI-14
B.2.a Limitation on Civil Judicial
Enforcement Actions Applies Only to
Executive Branch Agencies . . . . . . . . . . VI-14
B.2.b Contractor and Other Private Party
Arrangements Involving Federal
Facilities . . . . . . . . . . . . . . . . . VI-14
B.2.c Contractor Listing . . . . . . . . . . . . . VI-16
B.3 Criminal Enforcement Actions at
Federal Facilities . . . . . . . . . . . . . . . . . . VI-16
B.4 Press Releases for EPA Enforcement Actions at
Federal Facilities . . . . . . . . . . . . . . . . . . VI-16
B.5 Monitoring Compliance . . . . . . . . . . . . . . . . . VI-17
CHAPTER VII - ROLE OF THE STATES IN RESPONDING TO FEDERAL
FACILITIES VIOLATIONS
A. STATE RESPONSE TO FEDERAL FACILITIES VIOLATIONS . . . . . . VII-1
A.1 Use of State Enforcement Authorities . . . . . . . . . VII-1
A.2 State Enforcement Response Lead Following . . . . . . .
EPA Inspection in Delegated States . . . . . . . . . . VII-2
A.3 EPA Involvement in State Enforcement Actions . . . . . VII-2
A.4 Relationship of State Administrative and
Judicial Citizen Suits to EPA Compliance
Agreements . . . . . . . . . . . . . . . . . . . . . . VII-3
B. FEDERAL FACILITIES IN THE STATE / EPA ENFORCEMENT
AGREEMENTS PROCESS . . . . . . . . . . . . . . . . . . . . . VII-3
vi
Page
Number
B.1 Clear Oversight Criteria and Oversight
Approach . . . . . . . . . . . . . . . . . . . . . . . VII-4
B.1.a Identification of and
Priorities for the Regulated
Community . . . . . . . . . . . . . . . . . VII-4
B.1.b Clear and Enforceable Requirements . . . . . VII-4
B.1.c Accurate and Reliable Compliance
Monitoring . . . . . . . . . . . . . . . . . VII-4
B.1.d High or Improving Rates of
Continuing Compliance . . . . . . . . . . . VII-4
B.1.e Timely and Appropriate Enforcement
Response . . . . . . . . . . . . . . . . . . VII-5
B.1.f Accurate Recordkeeping and
Reporting . . . . . . . . . . . . . . . . . VII-5
B.2 Direct EPA Enforcement . . . . . . . . . . . . . . . . VII-5
B.3 Advance Notification and Consultation . . . . . . . . VII-5
CHAPTER VIII - EPA ROLES AND RESPONSIBILITIES FOR PROGRAM
IMPLEMENTATION
A. REGIONAL OFFICE STAFF . . . . . . . . . . . . . . . . . . . VIII-1
A.1 Regional Administrator . . . . . . . . . . . . . . . . VIII-1
A.2 Regional Administrator /
Deputy Regional Administrator . . . . . . . . . . . . VIII-2
A.3 Regional Counsel . . . . . . . . . . . . . . . . . . . VIII-2
A.4 Regional Program Staff / Division Directors . . . . . VIII-3
A.5 Regional Federal Facilities Coordinator . . . . . . . VIII-4
B. EPA HEADQUARTERS OFFICES . . . . . . . . . . . . . . . . . VIII-6
B.1 Headquarters Program Offices . . . . . . . . . . . . . VIII-7
B.2 Office of External Affairs / Office of
Federal Activities . . . . . . . . . . . . . . . . . . VIII-8
B.3 Office of Enforcement and Compliance
Monitoring . . . . . . . . . . . . . . . . . . . . . . VIII-10
B.4 Office of General Counsel . . . . . . . . . . . . . . VIII-10
v
INDEX OF EXHIBITS
Exhibit Page
Number
I-1 EPA Federal Facilities Coordinators . . . . . . . . . I-5
III-1 Defining the Federal Facility Coordinator . . . . . . III-6
III-2 Identification of the Regulated Community of
Facilities with Federal Involvement . . . . . . . . . III-7
III-3 Federal Facilities Identification Numbers . . . . . . III-9
III-4 Program Information Systems . . . . . . . . . . . . III-11
IV-1 The EPA Journal . . . . . . . . . . . . . . . . . . . IV-9
V-1 Media Program Inspections . . . . . . . . . . . . . . V-11
V-2 Annual Timetable of Key A-106 Events . . . . . . . . V-14
V-3 Federal Agency A-106 Pollution Abatement Plan-
Project Report Form No. 3500-7 . . . . . . . . . . . V-15
V-4 EPA Inadequate and Needed Sheets and the Federal
Agency Response Formats . . . . . . . . . . . . . . . V-16
VI-1 Timely and Appropriate Enforcement
Response Matrix . . . . . . . . . . . . . . . . . . . VI-18
VI-2 Federal Facility Enforcement Response Process
and Dispute Resolution Process . . . . . . . . . . . VI-21
VI-3 EPA Initial Enforcement Response to Violations
at Facilities with Federal Involvement . . . . . . . VI-23
VIII-1 EPA Regional Office Staff Coordination . . . . . . . VIII-11
VIII-2 EPA Headquarters Office Staff Coordination . . . . . VIII-12
vi
LIST OF ACRONYMS AND ABBREVIATIONS
AA Assistant Administrator
AO Administrative Order
ATS Administrator's Tracking System
CAA Clean Air Act
CERCLA Comprehensive Environmental Response, Compensation, and Liability
Act
COCO Contractor Owned / Contractor Operated
COCO (E) Contractor Owned / Contractor Operated (Equipment)
CWA Clean Water Act
DOD Department of Defense
DOJ Department of Justice
DRA Deputy Regional Administrator
E.O. Executive Order
ESD Environmental Services Division
FARES Federal Activities Regional Evaluation System
FEMA Federal Emergency Management Agency
FFIS Federal Facilities Information System
FIFRA Federal Insecticide, Fungicide, and Rodenticide Act
FINDS Facility Index System
GAO General Accounting Office
GOCO Government Owned / Contractor Operated
GOGO Government Owned / Government Operated
GOPO Government Owned / Privately Operated
IRIS Integrated Risk Information System
JOCO Jointly Owned / Contractor Operated
NEIC National Enforcement Investigations Center
NRC Nuclear Regulatory Commission
vii
LIST OF ACRONYMS AND ABBREVIATIONS (Continued)
NOV Notice of Violation
OARM Office of Administration and Resources Management
OEA Office of External Affairs
OECM Office of Enforcement and Compliance Monitoring
OFA Office of Federal Activities
OGC Office of General Council
OIRM Office of Information and Resource Management
OMB Office of Management and Budget
OMSE Office of Management Systems Evaluation
OPPE Office of Policy and Program Evaluation
ORD Office of Research and Development
POGO Privately Owned / Government Operated
PWSS Public Water Supply System
RA Regional Administrator
RAP Remedial Action Plan
RCRA Resource Conservation and Recovery Act
SARA Superfund Amendments and Reauthorization Act
SDWA Safe Drinking Water Act
SNC Significant Noncomplier
SPMS Strategic Planning and Management System
TSCA Toxic Substances Control Act
UIC Underground Injection Control
viii
LIST OF APPENDICES
APPENDIX A Summaries of Federal Environmental Statues:
* Clean Air Act ( CAA )
* Clean Water Act ( CWA )
* Resource Conservation and Recovery Act ( RCRA )
* Federal Insecticide, Fungicide and Rodenticide Act
( FIFRA )
* Toxic Substances Control Act ( TSCA )
* Comprehensive Environmental Response, Compensation, and
Liability Act ( CERCLA )
* Safe Drinking Water Act ( SDWA )
APPENDIX B Executive Order 12088, 12146, and 12580
APPENDIX C EPA Program Definitions for Majors, Minors, Significant
Noncompliers and Significant Violators
APPENDIX D EPA Environmental Auditing Policy
APPENDIX E EPA "Hotline" Assistance
APPENDIX F Reporting, Recordkeeping, and Self-Monitoring Requirements
Under the CAA, CWS, CERCLA and RCRA
APPENDIX G OMB Circular No. A-106
APPENDIX H Department of Justice Letters ( 10/11/83 and 12/20/85 ) and
Congressional Testimony on Federal Facilities Compliance
( 4/28/87 )
APPENDIX I Enforcement Response Authorities by Program
APPENDIX J Sample Enforcement Response Forms and Letters
APPENDIX K Enforcement Actions under RCRA and CERCLA at Federal
Facilities and Elevation Process for Achieving Federal
Facility Compliance Under RCRA
APPENDIX L Policy on Publicizing Enforcement Actions
ix
EXECUTIVE SUMMARY
The Federal Facilities Compliance Strategy establishes a comprehensive
and proactive approach to achieving and maintaining high rates of compliance
at Federal facilities. It provides the basic framework for EPA's media
programs to follow in ensuring that Federal facilities are fully integrated
into Federal and State compliance monitoring and enforcement activities. It
also attempts to reconcile the Agency's dual responsibilities of providing
technical assistance and advice to Federal facilities to help ensure their
compliance, as required under Presidential Executive Order No. 12088, and of
taking enforcement actions against Federal facilities, where appropriate, as
provided for in the various environmental statutes.
This Strategy clarifies that Federal agencies must comply with
environmental laws in the same manner and degree as non-Federal entities and
EPA will utilize the full range of its available enforcement mechanisms to
ensure compliance by Federal facilities. However, EPA also recognizes that
there are certain limitations and differences in the types of enforcement
actions which EPA will take at Federal facilities. In addition, EPA's
mandate to provide technical assistance as well as the restrictions inherent
in the Federal budget and appropriations process influenced EPA's decision
that a separate strategy was needed to address compliance problems at
Federal facilities.
This document was written to serve several audiences: to serve as
guidance for EPA Headquarters and Regional staff; to clarify State and
Federal compliance monitoring and enforcement roles; to inform Federal
agencies of EPA's strategy and identify procedures to be followed when
violations have been discovered; and finally, to communicate EPA's approach
for addressing compliance problems at Federal facilities to Congress, the
public, and concerned interest groups.
Chapter II--Summary of Environmental Statutes and Executive Orders
Federal agencies generally must comply with all provisions of Federal
environmental statutes and regulations as well as all applicable State and
local requirements, with the exception of very limited Presidential
exemptions which may be issued on site-specific basis. Presidential
Executive Orders also stress the mandate for Federal facilities to comply
fully with environmental requirements and to establish procedures for
ensuring that this is accomplished, including special procedures for
resolving compliance disputes within the Executive Branch involving EPA and
other Federal agencies.
Chapter III--Identification of the Regulated Community
A more definitive inventory of Federal facilities will enable EPA to
establish more effective priorities and select targets for assistance,
compliance monitoring, and enforcement activities. The Strategy clarifies
that EPA is focusing on that subset of Federal facilities which have
potential for environmental impact.
The Strategy defines the various types of Federal facilities and Federal
lands, and describes how available sources of information and program data
systems will be used by EPA to identify and track compliance at Federal
facilities. It outlines new actions that EPA will undertake to improve the
quantity and quality of information on the Federal facilities universe,
including reviews of Federal facility classifications and major / minor
facility
x
definitions and the identification of important Federal facility minors and
environmentally significant facilities on a multi-media basis.
Chapter IV--Compliance Promotion, Technical Assistance and Training
To meet its unique responsibilities under E.O. 12088 to provide
technical assistance and advice to Federal agencies, EPA is establishing a
more systematic communications system for exchange of information on new or
revised regulatory or statutory environmental requirements. The Strategy
describes the functions of EPA's various "Hotlines" and encourages Federal
agency personnel to utilize these services to assist them in maintaining
compliance at their facilities. In addition to information transfer, the
Strategy introduces improved approaches for informing Federal facilities for
courses in areas where an Agency has had a pattern of compliance problems.
EPA has a unique opportunity to work with other Federal agencies and the
States to identify broad patterns of current and potential compliance
problems among facilities in a given Agency. Based upon information from
Regions and States about patterns of noncompliance by Federal facilities,
EPA will develop a comprehensive strategy to correct these noncompliance
patterns and will work with the parent Agency to ensure the strategy is
implemented. In an effort to prevent future compliance problems, the annual
A-106 planning process will be used more effectively to inform Federal
agencies of EPA priority areas and request them to direct their A-106
projects to these areas where appropriate.
Federal facilities are also encouraged to adopt environmental auditing
programs to help achieve and maintain higher levels of overall compliance.
EPA will provide technical assistance to other Federal agencies in the
initiation and implementation of auditing programs.
Chapter V--Compliance Monitoring
The Strategy strengthens compliance monitoring activities at Federal
facilities by ensuring that EPA or the States' presence is being
demonstrated at all Federal agencies which have the potential for
environmental impact. Federal facilities are to be inspected at least as
frequently as all other sources, consistent with the priorities, frequencies
and types of inspections established in each media program guidance. In
addition, Regions are to identify the most environmentally significant
Federal facilities across several media programs as candidates for multi-
media inspections.
EPA plans to improve the efficiency and effectiveness of the Federal
agency A-106 pollution abatement planning process by addressing compliance
problems at Federal facilities before they become violations, linking the
process more closely to identified EPA environmental priorities and other
systematic program improvements.
Chapter VI--EPA Enforcement Response at Federal Facilities
The most significant provisions of this Strategy deal with the basic
approach and procedures EPA will use when responding to violations at
Federal facilities. The strategy clarifies that Federal agencies are
required to comply with environmental laws the same as non-Federal regulated
entities and that EPA will utilize all of its available enforcement
mechanisms at Federal facilities. The strategy also recognizes that there
are certain
xi
limitations and differences in terms of the types of enforcement action
which EPA will take against Federal facilities.
EPA and States are to pursue "timely and appropriate" enforcement
responses to address violations at Federal facilities in a manner similar to
actions taken to address violations at non-Federal facilities. EPA's
enforcement responses emphasize that if a violation is not or will not be
corrected with the timeframe for violations of that class, an enforcement
action should be taken consistent with media program guidance.
EPA's formal enforcement responses for Federal facilities emphasize the
use of mutually negotiated remedial actions and schedules in the first
instance, formalized through Compliance Agreements or Consent Orders,
depending upon program authorities and guidance. EPA will issue proposed
administrative enforcement actions where mutual agreement cannot be reached
in a timely manner, and will promptly utilize all available dispute
resolution mechanisms to effectively resolve areas of disagreement. The
Strategy also clarifies that Federal agency officials are required to take
all available steps to obtain sufficient funds to achieve compliance on the
most expeditious schedule possible.
EPA's enforcement process for Executive Branch Agencies is purely
administrative, and neither provides for civil judicial action nor
assessment of civil penalties. 1/
1/ This limitation does not apply to penalties for violations of
Interagency Agreements under Section 120 of the 1986 Superfund
Amendments and Reauthorization Act ( SARA ).
This limitation does not apply to enforcement actions taken by States as
authorized under various statutes nor to EPA actions directed to non-Federal
operators of Federal facilities who are not officials of Executive Branch
Agencies. EPA will pursue the full range of its enforcement authorities
against private operators of Federal facilities ( e.g., GOCOs ) where
appropriate and also take action against Federal agencies at GOCO facilities
in certain circumstances. EPA will develop a GOCO Enforcement Strategy as a
follow-up to this document to further clarify this issue.
Chapter VII--Role of the States in Federal Facilities Compliance
States generally may exercise a broader range of authorities and
enforcement tools than EPA to address violations at Federal facilities.
Under many statutes, delegated or authorized States can use the full range
of these enforcement authorities to address Federal facility violations to
the same extent they are used for non-Federal facilities. States are also
encouraged, wherever possible, to pursue bilateral, negotiated agreements or
Consent Orders with Federal facilities. In any delegated State enforcement
action involving Federal facilities EPA will be careful not to interfere
with the State's enforcement proceedings. However, EPA will be available
upon request to either party to help facilitate expeditious compliance.
State and Federal roles in compliance and enforcement are defined
through State / EPA Enforcement Agreements negotiated by the Region and each
of its States for each media program, consistent with the Policy Framework
for State / EPA Enforcement Agreements and program-specific implementing
guidance. While most aspects of these Agreements pertain equally to Federal
and non-Federal facilities, the Strategy outlines several areas in which
Federal facilities should be explicitly addressed in the Enforcement
Agreements process.
xii
As part of the State / EPA Enforcement Agreements process, Regions
should review the Strategy with their States and address five areas: (1)
the enforcement approach the State plans to use for responding to Federal
facility violations; (2) the types of situations where the State would
request EPA support or direct action; (3) any additional information the
State has agreed to report to EPA on Federal facilities compliance and
enforcement activities; (4) how the State will be involved in the A-106
process; and (5) plans for a joint EPA / State annual review of compliance
problems at Federal facilities in the State.
Chapter VIII--EPA Roles and Responsibilities for Strategy Implementation
The Strategy clarifies EPA roles and responsibilities for implementing
this Strategy and the overall Federal facilities compliance program. It
outlines the roles of the Regional staff and the various Headquarters
offices.
The strategy emphasizes the need for Federal facilities to be integrated
into the ongoing compliance and enforcement activities of each EPA media
program. The Federal facilities Coordinator's role is to coordinate
Regional program office implementation of these activities. Implicit in
this Strategy is the need for teamwork among the various offices and staff
involved in addressing Federal facilities compliance.
* * * * *
This Strategy replaces the previous program document, entitled
"Resolution of Compliance Problems at Federal Facilities" ( known as the
"Yellow Book" ), dated January 1984, and will still be referred to as the
"Yellow Book." Full implementation is being phased is over the next few
years, beginning in mid-FY 1988. The enforcement response provisions are to
be fully implemented immediately. EPA's Annual Operating Year Guidance will
set subsequent priorities for the implementation of the remainder of this
Strategy. Enforcement and remedial response procedures under CERCLA / SARA
generally are not addressed by this document. However, references to CERCLA
SARA have been included in several places for information purposes only.
In addition, the Strategy document has a number of Appendices which
contain various reference documents, model response forms, compliance
agreements, definitions of key EPA terms, etc., all of which should prove to
be helpful to environmental staff in other Federal agencies. Additional
copies of the Strategy may be obtained by written request to EPA at the
following address:
US Environmental Protection Agency
Office of Federal Activities (A-104)
Federal Facilities Compliance Program
401 M Street, S.W.
Washington, D.C. 20460
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EXECUTIVE SUMMARY
VI. ENFORCEMENT RESPONSE TO COMPLIANCE
PROBLEMS AND VIOLATIONS OF ENVIRONMENTAL
LAWS AT FEDERAL FACILITIES
This Chapter outlines the basic approach and procedures which EPA uses
when responding to violations of environmental law at Federal facilities.
1/
1/ The provisions of this Chapter are not applicable to enforcement
actions under CERCLA / SARA. Any references to CERCLA / SARA are
included for information purposes only.
It explains the concept of timely and appropriate enforcement response and
why it is important to gaining high levels of compliance. It discusses
unique features of Federal enforcement procedures, State environment
responses to Federal facility violations as well as the enforcement roles
and responsibilities of each level of government. EPA media program offices
also may develop specific enforcement guidance for Federal facilities
through either their annual Operating Guidance or in other program policy
documents. However, any media-specific enforcement guidance which is issued
for Federal facilities will be consistent with the basic framework and
concepts set forth in this strategy.
In summary, EPA and States are to pursue "timely and appropriate"
enforcement responses to address violations at Federal facilities in manner
similar to actions taken to address violations at non-Federal facilities.
EPA's enforcement response guidance emphasizes that if a violation is not or
will not be corrected within the timeframe for violations of that class, a
formal enforcement action must be taken consistent with media program
guidance, including required degrees of formality and timeliness.
EPA's enforcement approach for Federal facilities emphasizes the
importance of negotiated responses for the correction of violations and
schedules formalized through Compliance Agreements or Consent Orders,
depending upon program authorities and guidance. Where agreement cannot be
reached on all issues in a timely manner, EPA will promptly utilize all
available enforcement and dispute resolution mechanisms to effectively
resolve areas of disagreement.
This chapter also clarifies that Federal officials are expected to take
all available steps to obtain sufficient funds to achieve compliance on the
most expeditious schedule possible. While EPA recognizes that the Anti-
Deficiency Act places certain limitations on Federal officials' abilities to
commit funds which they have not been authorized to spend, they may seek
additional funds where needed to correct identified compliance problems.
EPA's enforcement response for Executive Branch agencies differs
somewhat from its enforcement against non-Federal parties in that it is
purely administrative, and neither provides for civil judicial action nor
assessment of civil penalties. 2/
2/ This limitation does not apply to penalties for violations of
Interagency Agreements under Section 120 of the 1986 Superfund
Amendments and Reauthorization Act ( SARA ) pursuant to Sections
109(a)(1)(E) and 122(g) of SARA.
This does not apply to enforcement actions taken by states as authorized
under various statutes nor to EPA actions directed to non-Federal operators
of Federal facilities ( e.g., GOCO's ). EPA will pursue the full range of
its enforcement responses against private operators of Federal facilities in
appropriate circumstances. In addition, sanctions may be sought against
individual employees of Federal agencies for criminal violations of
environmental statutes.
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A. OVERALL COMPLIANCE POLICY AND PHILOSOPHY
Enforcement is an essential supplement to the strong public mandate for
Federal facilities to comply with Federal, State and local pollution control
requirements to the same extent as non-Federal entities. Enforcement
reinforces the special sense of public duty to comply that this mandate
instills in our Federal officials. It is generally recognized by EPA and
the public that compliance promotion activities such as technical assistance
and training are not in themselves sufficient to create full compliance nor
to provide the necessary incentives for public or private officials to
affirmatively prevent and anticipate problems in complying with
environmental laws.
Federal agencies must comply with Federal environmental laws in the same
manner and degree as non-Federal entities and EPA will utilize the full
range of its available enforcement mechanisms to ensure Federal facilities
compliance. Federal environmental statutes require that, in most
circumstances, facilities of the United States Government comply with
Federal, State, and local pollution control requirements to the same extent
as non-Federal entities. There are, however, certain limitations and
differences in terms of the types of enforcement actions which EPA will take
against Federal facilities. Unique considerations and procedures that are
applicable when enforcement is undertaken against Federal facilities by EPA
are explained in the next section of this Chapter.
Federal and State enforcement officials must adhere to the concept of
timely and appropriate enforcement response, which EPA and the States have
defined for each program to establish a strong, stable, and predictable
national enforcement presence. What this means is that if violators are not
returned to compliance within a certain timeframe, through a variety of
informal contacts and enforcement responses, timely formal enforcement
action is required. Timely and appropriate enforcement response guidance,
with its timelines, required degree of formality, sanction and escalation,
is deemed essential to achieving high levels of Federal facility compliance.
National guidance issued for each environmental program establishes
timelines for key milestones in the enforcement framework for Implementing
State / Federal Enforcement Agreements," which sets forth the Agency's
general principles on timely and appropriate enforcement response, and
program implementing guidance are summarized in Exhibit VI-1 and Appendix C.
This exhibit also includes the criteria for defining what constitutes a
formal enforcement response. The principles of timely and appropriate
enforcement response apply to the full range of sources regulated under
Federal statutes; however, the application of specific timelines and
definitions in Exhibit VI-1 is generally directed to the most significant
violations in each environmental program. Appendix C contains each of the
EPA media programs' definitions for significant noncompliance. Regions and
States should also apply these timeframes to other types of violations at
Federal facilities to the extent possible with available resources and
consistent with media program guidance.
The national timely and appropriate milestones are adapted to specific
legal enforcement mechanisms and procedures unique to each State.
Agreements which embody these "timely and appropriate" requirements and
definitions are reached between EPA Regions and States and committed to
writing in State / EPA Enforcement Agreements, discussed more fully in
Chapter VII. These agreements may also specifically address other
compliance activities and response actions of Federal facilities.
EPA emphasizes negotiation with responsible Federal officials on
corrective actions and schedules needed to expeditiously resolve
noncompliance situations. EPA will generally use either Compliance
Agreements or Consent Orders ( depending upon available
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statutory authorities and media program guidance ) as the primary mechanism
for formalizing agreements with Federal facilities.
B. EPA RESPONSE TO FEDERAL FACILITIES VIOLATIONS
The Federal enforcement process outlined in this Section is designed to
provide a uniform approach to responding to violations at Federal
facilities, recognizing that each environmental statute establishes somewhat
different enforcement response mechanisms. There are several factors which
distinguish EPA's enforcement response to Federal facilities from
enforcement at non-Federal facilities and by the States:
(a) EPA has a broad mandate to provide technical assistance and advice
to Federal agencies to ensure their compliance, as required under
Executive Order 12088 ( See detail in Chapter II ). However,
implementing this mandate will not interfere with the application
by EPA ( or States ) of timely and appropriate enforcement
procedures to achieve the most expeditious schedule of compliance.
(b) EPA places emphasis on negotiations with responsible Federal
officials in resolving Federal facility noncompliance with
enforcement documents issued on consent and signed by both parties.
This Strategy also explains how failure to reach agreement in a
timely manner will be resolved.
(c) Federal EPA enforcement actions and procedures for resolution of
compliance problems differ in certain respects for Federal versus
non-Federal facilities:
i. EPA will not bring civil judicial suit against Executive
Branch Agencies and will rely upon administrative enforcement
mechanisms for Federal facilities as outlined in Appendix I. This
respects the position of the Department of Justice that civil suits
within the Federal establishment lack the constitutionally required
"justiciable controversy." ( See Appendix H which contains the
Justice Department's testimony on this issue at a Congressional
oversight hearing in April, 1987 ).
ii. EPA generally will not assess civil penalties against Federal
facilities under most environmental statutes. 3/
3/ This limitation does not apply to penalties for violations of
Interagency Agreements under Section 120 of the 1986 Superfund
Amendments and Reauthorization Act ( SARA ) pursuant to Sections
109(a)(1)(E) and 122(g) of SARA.
This also is in response to the Justice Department position
discussed above as well as Federal District court rulings which
have issued conflicting decisions as to whether or not the United
States government has clearly and unambiguously waived its
sovereign immunity for penalties under various environmental
statutes.
iii. EPA will negotiate Compliance Agreements or Consent Orders
with Federal agencies to address violations at Federal facilities.
The timeframes for negotiation of Compliance Agreements and Consent
Orders are defined by EPA's media specific "timely and appropriate"
criteria. Prior to issuing a final Compliance Agreement or Consent
Order to a Federal facility, the Federal Agency will be provided an
opportunity to meet with EPA to discuss key issues and to sign it
on
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consent prior to the order or agreement becoming final and
effective. 4/
4/ EPA may issue unilateral administrative orders to Federal facilities
under Section 106 of SARA following concurrence by the Department of
Justice pursuant to Section 4(b)(1) of Executive Order 12580.
This approach is also based in part on DOJ's written position which
states that "Executive Branch agencies may not sue one another nor
may one agency be ordered by another to comply without the prior
opportunity to contest the order within the Executive Branch."
iv. Additional dispute resolution procedures are provided in media
program guidance to resolve compliance issues through EPA, and if
necessary, involve OMB under E.O. 12088 for funding disputes, the
Attorney General under E.O. 12146 for legal interpretation and the
EPA Administrator under E.O. 12580 for CERCLA / SARA.
v. Federal facilities, like all public entities, face problems in
ensuring that funds are adequate to meet environmental requirements
and remedy noncompliance. The obligation to comply is not altered
by such funding considerations; the most expeditious means of
achieving compliance and obtaining funds is expected. However, the
process for acquiring funds does pose unique considerations which
should be taken into account in negotiating compliance schedules as
described in Section B.1.f.
B.1 Federal Facilities Compliance Process: Civil Administrative Enforcement
Procedures
The Federal facilities compliance process outlines the administrative
procedures EPA will follow when responding to civil violations identified at
Federal facilities. This process is illustrated in Exhibit VI-2 and
discussed below. These procedures apply when civil enforcement responses
are directed at facilities of Executive Branch Agencies.
B.1.a Notification of Violation
EPA monitors compliance status and identifies violations at Federal
facilities through reviews of source self-monitoring and reporting
documents, onsite inspections, and the A-106 process. Once a violation is
discovered, EPA makes a determination of noncompliance and takes its initial
enforcement response.
EPA's initial enforcement response to an identified violation may vary
depending on the type of violation and nature of the violator. Media-
specific guidance governs the type of initial response and timeframe for
such response. See Appendix I for types of enforcement mechanisms used
under each Federal environmental program. When EPA has made its
determination that a violation has occurred at a Federal facility, Federal
Facilities Coordinators or media program staff may informally notify the
facility ( e.g., via telephone ) prior to issuance of formal written
notification. If Federal Facilities Coordinators provide this informal
notification, they should first consult with appropriate media program
staff. This will provide the Federal facility with some additional time to
remedy the identified violation before receiving formal written notification
from EPA.
Generally, EPA issues a Notice of Violation ( NOV ), or other program
equivalent as the initial notice for requiring response to address
significant violations. NOVs or program equivalents issued for violations
at Federal facilities are similar to those issued for
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non-Federal violations except that they should not mention civil judicial
actions by EPA. At a minimum, NOV's or their program equivalent issued for
Federal facilities should:
* Be issued to base commander or facility director level officials.
* Describe the violation and how it was identified.
* State that the consequences of not meeting the requirements stated in
the NOV in a timely manner or responding to EPA by the dates
specified will result in the issuance of an order or formal
escalation of the enforcement action. Relevant citizen suit
provisions of involved statutes may also be cited here.
* Explain that the Federal agency can either submit a written
certification that it has corrected the violation if only a short-
term "fix" is required or an action plan and schedule for a violation
requiring more extensive remedial action. Selection of a date for
requiring submission of a certification of compliance or remedial
action plan and schedule is dependent on the timely and appropriate
timeframes shown for each program in Exhibit VI-1. In certain cases,
EPA may also include a schedule, proposed order, or proposed
compliance agreement as part of or attached to the NOV. The NOV
should also state the number of days EPA will take to respond to the
reply.
* Refer to any available alternatives to compliance ( e.g.,
Presidential exemptions or specific legislative relief ).
* Offer to schedule a meeting or conference with Federal agency
officials who are authorized to sign a Compliance Agreement or
Consent Order. These officials must also have the authority to make
the necessary budget requests to correct the violation according to
the schedule outlined in the Agreement.
The NOV, or program equivalents, should be tailored to address the
specific noncompliance situation identified at the facility. Appendix J
provides a model for developing an NOV. Copies of all NOVs and other
enforcement actions issued by EPA to Federal facilities shall be sent to the
involved Headquarters media program enforcement office with a copy to the
Office of Federal Activities.
B.1.b Response by Federal Facilities: Certification of Compliance or
Remedial Action Plans
Once a facility has received the official notice of violation or program
equivalent, it is required to submit either a certification of violation
correction, or a remedial action plan ( RAP ) to EPA. A facility can also
dispute EPA's noncompliance finding through appeals as provided for through
the dispute resolution process outlined in Section B.1.e.
The certification of violation correction will consist of a letter from
the facility which identifies the violation and describes remedial action
taken. It is accompanied by support documentation that demonstrates
achievement of compliance. When remedial actions needed to correct the
violation will exceed the timeframes for timely and appropriate enforcement
response for either achieving compliance or being subject to formal
enforcement response, the facility must submit a remedial action plan. The
plan should:
* Describe the noncompliance situation;
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* Identify the corrective actions to be taken;
* Outline the schedule for implementing the remedial actions; and
* Describe the content and frequency of progress reports.
EPA will acknowledge the receipt of the proposed certifications and
remedial action plans with a written response. An example of such a
Response Form is provided in Appendix J. A response should be worded so the
facility is not insulated from further EPA or State enforcement action. The
response should also specify a date by which EPA will respond which should
normally be within 30 days. In complex situations, detailed comments may
follow thereafter.
Remedial actions and schedules proposed by the Federal facility may
serve as a basis for a Compliance Agreement or Consent Order. Although a
remedial action plan does not constitute an EPA enforcement response, it may
be used as a basis for monitoring future compliance for violations that are
not sufficiently significant, as defined in program guidance, to mandate
formal enforcement response.
In the event of disputes in instances where formal enforcement response
is not necessary, the Region may use the dispute resolution processes
described in Section B.1.e to further escalate and resolve compliance.
B.1.c Initial Negotiation of Compliance Agreements or Consent Orders
Where formal enforcement response is required, following the
notification of violation, EPA generally will use Compliance Agreements or
Consent Orders as the primary formal enforcement response to formalize
bilateral agreements between EPA and a Federal agency to ensure expeditious
return to compliance. Compliance Agreements will be used as EPA's principal
formal enforcement response unless media program guidance indicates that
statutory authorities are available for use of Consent Orders for Federal
facilities violations. Appendix I indicates the specific enforcement
responses in each media program and highlights those which are available for
use at Federal facilities. Consent Orders should be used when agreements
are negotiated jointly with a State and the State has administrative order
authority.
It is EPA policy that Compliance Agreements or Consent Orders should be
negotiated within required media-specific, "timely and appropriate"
timeframes or EPA may take further formal administrative enforcement action
to achieve compliance. EPA will prepare Compliance Agreements or Consent
Orders for joint signature by the affected facility and EPA. At a minimum,
all Compliance Agreements and Consent Orders should state that the violating
facility is accountable for meeting timeframes and taking required actions
as outlined in the Agreement or Order or be subject to further enforcement
action. In certain cases, it may be necessary to negotiate a two phased
agreement or order for the same violation: the first detailing a schedule
for studies necessary to correct the problem and the second establishing a
plan and schedule for remedying the problems based on the results of the
studies. The time schedules included in both may overlap or be concurrent.
Environmental audit provisions will be emphasized in negotiations in
instances in which the Federal agency can constructively be directed to
correct similar violations which are likely to occur at other related
facilities or there appear to be systematic compliance
VI-6
management problems. This is consistent with the July 9, 1986 Policy
Statement on Environmental Auditing, 51 FR 25004 ( See Appendix D ).
Federal Facility Coordinators will assist the media program offices and
the Regional Counsel's office in preparing and negotiating Compliance
Agreements or Consent Orders with Federal agencies. Appendix J outlines a
format to use when developing a Compliance Agreement or Consent Order for a
Federal facility. This sample Compliance Agreement incorporates model
language developed by the Department of Justice.
EPA media programs may consider including enforceability clauses in
Compliance Agreements with Federal facilities which reference the applicable
citizen suit provisions of the involved statute. The RCRA program has
developed a model "Enforceability Clause" to be included in all RCRA Federal
Facility Compliance Agreements. These clauses reference the use of
applicable citizen suit provisions by States or citizens for failure to
comply with terms or schedules in Compliance Agreements. See Appendix J for
a copy of the RCRA Program Enforceability Clause. Certain EPA Media program
offices also have developed specific guidance concerning Compliance
Agreements. For example, the RCRA program model language for Federal
Facility Compliance Agreements is contained in the January 25, 1988
memorandum "Enforcement Actions under RCRA and CERLA at Federal Facilities,"
which is contained in Appendix K.
* Timely and Appropriate Response Criteria
EPA's timely and appropriate enforcement guidance sets forth the
criteria for the commencement of an enforcement action at a facility in
violation. The negotiation of Compliance agreements and Consent Orders at
Federal facilities are subject to EPA's timely and appropriate enforcement
response criteria. Base on the type of violation at the facility, this
guidance establishes the time it should take to issue the initial
enforcement action, the type of enforcement action that should be taken, and
the amount of time it should take the facility either to achieve full
physical compliance or to enter into a Consent Order or Compliance Agreement
which incorporates a schedule for achieving compliance.
If compliance is not achieved or a Compliance Agreement or Consent Order
can not be negotiated within required media-specific timeframes, EPA
generally will issue a proposed order or proposed compliance agreement prior
to escalating its enforcement action using the dispute resolution procedures
outlined in Section B.1.e.
Timeframes for issuance of proposed Administrative Orders or Compliance
Agreements and their program equivalents will follow media-specific timely
and appropriate guidance as shown in Exhibit VI-1.
Informal assistance from OFA and Headquarters media program offices can
be used at any point in the process. Regional program offices are
encouraged to request OFA assistance through the Federal Facilities
Coordinators who will assist them in contacting Federal agency regional
operations and commands to resolve compliance problems. OFA and the media
program office will work directly with the parent agency's Headquarters
office and appropriate EPA Headquarters and Regional legal and compliance
program offices to try to resolve the problem.
EPA Regional staff also should successively escalate unresolved issues
up to the Deputy Regional Administrator ( DRA ), to the extent appropriate
before taking formal administrative action due to unresolved issues in
remedying compliance problems. The DRA may then contact an equivalent level
official of the other Federal Agency in an effort to achieve resolution.
VI-7
B.1.d Issuance of Proposed Consent Orders or Proposed Compliance Agreements
EPA may issue proposed administrative orders or proposed Compliance
Agreements at a number of different points in the compliance process in
order to expedite the timely resolution of violations by Federal facilities.
Proposed orders or compliance agreements generally are issued to Federal
facilities when:
* A Federal facility fails to respond by the date(s) specified in a
notification of violation or program equivalent.
* A Consent Order or Compliance Agreement cannot be or is not
successfully negotiated within the timeframes established in media-
specific guidance because of disagreement on proposed remedial
actions, the schedule for correcting the violation, or other
outstanding issues.
* A Federal facility has violated the terms of a signed Compliance
Agreement or Consent Order.
* There is an imminent and substantial endangerment to human health or
the environment which necessitates immediate action.
When initial negotiations for a Compliance Agreement or Consent Order to
address the violations at a Federal facility exceed the timely and
appropriate enforcement response timeframes for resolving violations, EPA
shall escalate the enforcement response action by issuing either a proposed
administrative order or a proposed Federal Facility Compliance Agreement to
the violating Federal facility. EPA's use of either a proposed order or a
compliance agreement as the formal enforcement mechanism for Federal
facility violations is dependent upon both the scope of EPA's administrative
order authority under each of the environmental statutes and media program-
specific enforcement guidance on the appropriate use of Consent Orders vs.
Compliance Agreements at Federal facilities. Appendix I contains a statute-
by-statute summary of EPA's administrative enforcement response authorities
for Federal facility violations. Since there are certain procedural
differences when suing orders vs. compliance agreements at Federal
facilities, these two mechanisms are discussed separately as follows:
* Compliance Agreements
Where agreements has not been reached within the media program's
timeframes for formal enforcement action, EPA generally will issue a
proposed compliance agreement to a Federal facility and allow a
specified period of time, usually 30 days, for the Federal agency to
respond in writing as to whether it agrees with the terms of the
agreement or whether it will seek resolution of disputed issues through
EPA dispute resolution process procedures. Upon issuance of the
proposed compliance agreement, EPA will notify the Federal facility that
failure to either agree to the conditions of the agreement or resolve
the remaining issues within 30 days of issuance will trigger the formal
dispute resolution process. If at the end of the 30-day period, the
Federal agency chooses to accept the proposed compliance agreement, the
agreement will become final and effective upon signature by both
parties. If the Federal Agency appeals the conditions of the compliance
agreement in writing or fails to respond within 30 days, the formal EPA
dispute resolution procedures will be initiated. See Section
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B.1.e. below which outlines the formal procedures for escalating and
resolving disputes between Executive Branch agencies.
* Consent Orders
Where EPA has statutory administrative order authority for Federal
facilities, and where it is specified in media-program guidance, EPA
will issue a proposed administrative order to a Federal facility and
allow a specified period of time, generally 30 days, for the Federal
agency to respond in writing stating whether it will (a) accept the
terms of the proposed order on consent or (b) seek resolution through
formal administrative appeals procedures EPA has established for the
type of order which was issued ( e.g., "Final Administrative Hearing
Procedures for RCRA Section 3008 (h) Orders," issued by EPA on February
19, 1987 ). If the Federal facility chooses to accept the proposed
order within the 30-day time period, it will be signed by both parties
and become a final consent order.
If the Federal facility fails to take advantage of this opportunity
and does not respond to EPA within the 30-day time specified in the
proposed order, the order will become a final administrative order,
effective at the time established in the proposed order. It is
important to point out that it is incumbent upon the Federal agency to
respond to EPA in writing within the timeframe specified in the proposed
order ( i.e., generally 30 days ) or it will become a final
administrative order which will foreclose any further opportunity to
negotiate and sign an order on consent. This approach is consistent
with the Justice Department's position that EPA may not issue
Administrative Orders to other Federal agencies "without the prior
opportunity to contest the order within the Executive Branch."
When a Federal facility has chosen to appeal a proposed order
through EPA's established administrative appeals procedures, it shall be
subjected to such proceedings in the same manner and degree as any
private party. If a settlement is reached through the use of these
appeals procedures, EPA and the involved Federal facility will both sign
a final administrative order on consent. If, however, these
administrative proceedings have been fully exhausted and agreement
cannot be reached be reached on consent, the formal dispute resolution
process will be initiated and the dispute will be escalated to EPA
Headquarters following the steps outlined in Section B.1.e. The
proposed order will be stayed pending escalation and resolution of the
dispute.
B.1.e Internal EPA Dispute Resolution Procedures
This strategy sets forth EPA's basic Federal Facilities Dispute
Resolution Process as described in detail in Section B.1.f below. There are
however, certain existing formal administrative procedures which are
applicable to all regulated entities and these will be utilized for Federal
facilities in appropriate circumstances. Certain media programs also have
issued specific written guidance for resolving disputes at Federal
facilities which may be followed consistent with the process outlined in
Section B.1.f. below. The types of internal EPA dispute resolution
procedures that may be utilized to resolve compliance problems at Federal
facilities are:
1) Administrative procedures established for certain specific
statutory authorities ( e.g., "Final Administrative Hearing
Procedures for RCRA Section 3008(h)" );
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2) Media-program specific written guidance for dispute resolution at
Federal facilities ( e.g., "Elevation Process for Achieving Federal
Facility Compliance Under RCRA," March 24, 1988 ( See Appendix
K ) ); or
3) EPA's Federal Facilities Dispute Resolution Process as described
below.
If available, established administrative procedures should first be
invoked to resolve disputes between Executive Agencies. If there are no
existing administrative procedures in place to resolve a conflict at a
Federal facility, the Regions should utilized media specific guidance, when
available, or the general Federal facilities EPA Dispute Resolution Process
outline below. Media-specific dispute resolution procedures for Federal
facilities still follow the generally concepts set forth in the EPA Federal
Facilities Dispute Resolution Process. However, media-specific guidance may
contain certain variations to accommodate media program procedural
difference or preferences.
B.1.f Federal Facilities Dispute Resolution Process
The focus of EPA's Federal Facilities Dispute Resolution Process is on
cases where EPA and the Federal agency are unable to agree on the
conditions, terms or schedules to be contained in a Compliance Agreement or
Consent Order. This process is also sometimes utilized for resolving
disputes resulting from violations of signed agreements or orders. In
addition, certain EPA media programs ( e.g., RCRA ) have established other
dispute resolution procedures for use when a facility has violated the terms
of a signed order or agreement as described further in section B.1.f.
EPA will make every effort to resolve noncompliance disputes at the
Regional level. However, when EPA and a Federal agency are unable to reach
formal agreement in a signed Consent Order or signed compliance Agreement,
the dispute will be formally referred by the Regional Administrator ( RA )
to the Assistant Administrator ( AA ) for the affected media program, the AA
for the Office of Enforcement and Compliance Monitoring and the AA for
External Affairs as shown in Exhibit VI-2. This joint referral should take
place only after the Regional Office has tried to resolve the issue within
established timeframes for guiding what constitutes "timely and appropriate"
enforcement response ( See Exhibit VI-1 ). In the Federal facility
compliance process, the use of internal EPA dispute resolution procedures is
the functional equivalent of a referral of civil judicial enforcement
actions for prosecution in the sense that it provides a final forum in which
disputes may be resolved for Executive Branch Agencies.
A 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. If a proposed order has been appealed, EPA's
formal administrative appeals procedures should first be exhausted prior to
making a formal referral to EPA Headquarters. 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 litigation report. The referral package must be signed by the
EPA Regional Administrator.
The Office of Federal Activities, or the lead media program office, will
notify the RA in writing when Headquarters receives the referral package and
also will report to the Region informally on a monthly basis and quarterly
on a formal basis the status of those facilities formally referred to
Headquarters. The involved EPA Headquarters media
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program office, with assistance from OFA and OECM, will attempt to negotiate
an acceptable solution with the parent Federal agency Headquarters office
within a maximum of 90 days of the referral to EPA Headquarters. At the
conclusion of this ninety-day period, if these negotiations are
unsuccessful, the Assistant EPA Administrator for the affected media program
will refer the dispute to the Administrator for resolution.
The EPA Administrator has primary responsibility for resolving
environmental disputes between Executive Branch agencies. The EPA
Administrator will consult with the head official of the parent Federal
agency and make every effort to reach agreement on an acceptable solution to
the problem. If the EPA Administrator determines that there are remaining
issues that cannot be resolved, the Administrator may exercise his authority
to invoke the procedures afforded by Executive Order 12088 or Executive
Order 12146 and involve either OMB or DOJ, respectively, in resolution of
the dispute.
B.1.g Use of Executive Order 12088 - Federal Compliance with Pollution
Control Standards
Section 1-602 of Executive Order 12088 states that "the Administrator
shall make every effort to resolve conflicts regarding such violations
between Executive agencies." The EPA Administrator may request OMB's
involvement particularly in cases where funding or schedules are the primary
issues in resolving the dispute. Section 1-603 further clarifies that OMB
"shall consider unresolved conflicts at the request of the Administrator."
This means that the EPA Administrator is the only Executive Branch official
who can formally request OMB resolution of a conflict between Federal
agencies under Executive Order 12088. The section further states that in
resolving such conflicts OMB "shall seek the Administrator's technological
judgment and determination with regard to the applicability of statutes and
regulations."
It also is important to point out that Section 1-604 of Executive Order
12088 states that "these conflict resolution procedures are in addition to,
not in lieu of, other procedures, including sanctions, for the enforcement
of applicable pollution control standards." This provision recognizes that
applicable EPA internal dispute resolution procedures shall be utilized
prior to Executive Order 12088 being invoked by the EPA Administrator.
B.1.h Use of Executive Order 12146 - Resolution of Interagency Legal
Disputes
Executive Order 12146 ( Appendix B ) provides for the submittal of legal
disputes between Federal agencies to the US Attorney General whenever
Executive Branch agency heads are unable to resolve such legal disputes.
The Executive Order clarifies that an interagency "legal dispute" would
include "the question of which ( agency ) has jurisdiction to administer a
particular program or to regulate a particular activity." In addition,
Section 1-402 of Executive Order 12146 specifically states that:
"Whenever two or more Executive agencies whose heads serve at the
pleasure of the President are unable to resolve such a legal
dispute, the agencies shall submit the dispute to the Attorney
General prior to proceeding in any court, except where there is
specific statutory vesting of responsibility for a resolution
elsewhere."
This means that while the EPA Administrator may invoke E.O. 12088 for
Federal facility disputes related primarily to funding and scheduling
issues, he may invoke Executive Order 12146 in cases involving legal
disputes. Therefore, for Federal agency
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legal disputes the EPA will utilize its internal dispute resolution
procedures prior to invoking E.O. 12146 as outlined above. When a legal
dispute cannot be resolved between the EPA administrator and the involved
Agency head, the EPA Administrator may request the involvement of the
Justice Department in resolving the dispute as outlined in E.O. 12146.
Another significant difference between the E.O. 12088 and the E.O. 12146
dispute resolution procedures is that, unlike E.O. 12088, referral of
disputes to the Attorney General is not limited to EPA, i.e., either Federal
agency or both that are involved in a legal dispute may submit the case to
the Justice Department.
B.1.i Use of Other Dispute Resolution Procedures for Violations of Signed
Agreements or Consent Orders.
The internal dispute resolution procedures outlined above are used
primarily to resolve disputes which arise prior to the finalization of
signed Compliance Agreement or Consent Order ( e.g., the involved parties
cannot agree on the terms, conditions or schedules in the order or
agreement ). However, there are also situations where disputes occur when a
Federal facility violates the terms of a Compliance Agreement or Consent
Order which has already been signed by both EPA and the involved agency. In
such cases, other dispute resolution procedures may be utilized if EPA and
the Federal facility had previously agreed to use other means of resolving
disputes that arise in the context of signed agreements or consent orders.
For example, the RCRA program has developed this type of dispute resolution
process as outlined in their January 25, 1988 guidance memorandum
"Enforcement Actions Under RCRA and CERCLA at Federal Facilities" ( See
Appendix K ). The primary differences between these procedures and what is
provided for in the Federal Facilities Dispute Resolution Process ( Section
B.1.f. ) are different timeframes and establishment of the EPA Administrator
as the final arbiter for disputes resulting from violations of signed
agreements.
In addition, the use of alternative dispute resolution ( ADR )
procedures, i.e., employing neutrals such as mediators, fact-finders, or
arbitrators, may be very helpful in resolving compliance problems and
disputes at a Federal facility ( See the Administrator's Guidance on the Use
of Alternative Dispute Resolution in EPA Enforcement Cases, dated August 14,
1987 ).
B.1.j Impact of Funds Availability on Achieving Compliance and Negotiating
Compliance Schedules
The Federal environmental statutes generally require that Federal
facilities must comply with pollution control requirements to the same
extent as non-Federal entities. The obligation of a Federal facility to
comply is not solely contingent upon the availability of existing funds. In
fact, Executive Order 12088 states that, "the head of each Executive Branch
agency shall ensure that sufficient funds for compliance with applicable
pollution control standards are requested in the agency budget." Specific
exemptions under the statutes discussed in Section B.1.k. do provide a
highly limited exception where the President has specifically requested an
appropriation as part of the budgetary process and the Congress failed to
make available such requested appropriation ( See RCRA Section 6001, CAA
Section 118, CWA Section 313 ).
Federal facilities are expected to seek all possible means funding to
achieve environmental compliance. While the A-106 pollution abatement
process is the primary vehicle which Federal agencies use to plan for
environmental projects, it is not the only funding related mechanism
available. Many compliance problems may not require large capital
expenditures, e.g., operation and maintenance ( O & M ) activities, and
Federal
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agencies are expected to use all available existing funds to return to
compliance in such circumstances. Some Federal agencies have O & M accounts
or capital accounts for building and construction funding, which can serve
as a source of funds. If a compliance problem does require significant
capital expenditures, the agency can consider reprogramming funds, transfer
authority, or requesting a supplemental appropriation, which will enable an
agency to receive funds in the year in which they are needed.
During negotiations on Compliance Agreements and Consent Orders, Federal
officials will be expected to offer the most expeditious means of funding
required remedial action(s). However, EPA recognizes that the Anti-
Deficiency Act ( 31 USC Section 1341 ) prohibits Federal officials from
committing funds beyond those they are authorized to spend. Therefore, the
language in the model Compliance Agreement in Appendix J simple commits the
Federal official to seek any additional necessary funding where existing
funds are unavailable to correct identifies compliance problems. Additional
appropriations should be sought only where it has been determined that
existing agency funds are either unavailable or inadequate to address the
violations. The Federal official signing a Compliance Agreement or Consent
Order should have the authority to obligate the funds or make the necessary
budget requests to expeditiously correct the violation according to the
schedule outlined in the Agreement or Order.
Section 1-602 of E.O. 12088 provides the opportunity for OMB to consider
such alternate sources of compliance funding as reprogramming or
environmental accounts and should be used by Federal agencies to ensure that
all possible avenues of securing necessary funds are exhausted.
B.1.k Exemptions
As directed by Section 1-703 of E.O. 12088, EPA can advise the President
on recommendations made by Federal agencies concerning exemptions of
facilities from compliance with applicable environmental regulations.
Exemptions may be granted only where such exemptions are necessary in the
interest of national security or in the paramount interest of the United
States. Additional requirements are imposed in particular environmental
statutes, e.g., in some, such an exemption is authorized for one year and
may be renewed, if necessary. In addition, as noted in Section B.1.e,
exemptions may only be granted for lack of funds if the President
specifically requests such funds from Congress and they are denied. Section
B of Chapter II summarizes the provisions of each of the statutes which
provide for such exemptions. It should be noted that while such exemptions
are provided for in the statutes, they have been rarely, if ever, invoked to
date, and it is not anticipated that there will be any increase in the
request or granting of exemption in the future.
The Regional office will assist any Federal facility which believes it
cannot comply with pollution control requirements in finding ways to achieve
compliance. Every effort will be made to negotiate an alternative to an
exemption which is acceptable to the parent Federal agency, EPA, and State
and local pollution control agencies.
If a Federal agency recommend that a facility receive an exemption, the
EPA Regional office will provide OFA, the Headquarters media enforcement
office and OECM with documentation of the problem so that EPA can establish
a position on the exemption. The Regional office should also submit its
analysis of the pros and cons of granting such an exemption. The analysis
should include the positions of any affected States. OFA will then submit a
recommended position for the Administrator to submit to OMB with the views
of all affected offices within EPA.
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If an exemption is granted to a Federal facility, EPA will provide
assistance to the facility in order to correct the pollution problem as
expeditiously as possible. The objective is to bring the facility into
compliance prior to the expiration of the exemption to preclude the need for
a renewal. A copy of the exemption will be sent to any affected States.
B.2 Enforcement Actions for Violations at Federal Facilities Directed at
Non-Federal Parties
This section outlines EPA's enforcement approach for addressing
violations at Federal facilities which are operated by private contractors
or other non-Federal parties, which generally are subject to the full range
of EPA's civil judicial and administrative enforcement authorities.
B.2.a Limitation on civil Judicial Enforcement Actions Applies Only to
Executive Branch Agencies
Although EPA will not bring civil judicial enforcement action or assess
civil penalties under most statutes against other Executive Branch
Departments and Agencies, EPA intends to exercise its full authority to
bring civil suits and assess civil penalties, as appropriate, against
parties that are not subject to this constraint.
B.2.b Contractor and Other Private Party Arrangements Involving Federal
Facilities
Most environmental statutes authorize enforcement response to be pursued
against either facility owners, operators or both to correct violations of
environmental law. There are numerous Federal facilities and public lands
which have some level of private party or non-Federal government involvement
in their operation or use. In its April 28, 1987 Congressional testimony
the Department of Justice stated that EPA has the authority to take
enforcement action against private contractors at Federal facilities ( See
Appendix H ). There may be cases where it will be more appropriate to
direct enforcement responses to these other parties, or to both the non-
Federal party and the Federal agency depending on the nature of the non-
Federal involvement, the language of the involved environmental statute or
other factors. This issue arises frequently at government-owned,
contractor-operated Federal facilities, commonly known as GOCO facilities.
* EPA Enforcement Response Policy at GOCO Facilities
EPA's initial enforcement response at GOCO facilities is influenced by a
number of factors including: the statutory language as to who can be held
responsible, ( i.e., providing that enforcement can directed at the owner,
operator or both ); decisions made by State and EPA officials in deciding
who the permit holder should be in the case of permit violations;
established contractual arrangements; the nature and type of violation(s);
and other factors which may determine where enforcement response will yield
the most expeditious return to compliance and deterrence for future
violations. In this regard, it is EPA policy to pursue the full range of
its enforcement authorities against contractor operators of government-owned
facilities in appropriate circumstances. EPA also may take enforcement
actions against Federal agencies at GOCO facilities following the procedures
outlined earlier in this chapter. In certain situations, it may be
appropriate to pursue enforcement actions against both the private
contractor and the involved Federal agency.
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As a follow-up to this strategy, EPA will be developing an Agencywide
GOCO Enforcement Strategy which will provide more detailed criteria and
factors to be considered in determining which party or parties to pursue
enforcement action against. This strategy shall also address the extent to
which there are certain Federal agency-specific circumstances which could
affect to whom EPA's initial enforcement response should be directed.
Exhibit VI-3 provides definitions of the various types of facilities and
lands with Federal involvement. This exhibit designates which party EPA
generally will direct its initial enforcement response against when
violations are identified ( i.e., either the Federal agency or the involved
private party ). Given the complex mix of public and private ownership,
operation, and use of the term "Federal facilities," the guidelines in
Exhibit VI-3 should help EPA to eliminate delays in taking initial action to
return violators to compliance.
It is important to note that this approach focuses only on the party at
which EPA's "initial enforcement response" will be directed. Following this
initial response, EPA's review of additional information and possible
discussions with each party may affect against which party any further
enforcement action should be taken, if such further action is necessary. In
addition, EPA's enforcement response against either or both parties does not
limit or otherwise restrict any future determination of their possible joint
or several liability in cases involving CERCLA or RCRA cleanup actions.
Simultaneous enforcement actions against both the Federal agency and the
contractor should be considered if this would facilitate resolution of the
compliance problem.
* Notification Procedures for GOCO Enforcement Actions
When EPA has determined which party it will pursue enforcement action
against, EPA will make every effort to notify ( through, at a minimum, a
formal copy (cc) of the enforcement action ) other involved parties of the
action being taken against either the Federal facility or the contractor.
This is important not only to enhance effective communication but also to
assist in bringing about expeditious compliance and remedying the violation
as soon as possible.
When EPA determines that its initial enforcement response will be
directed at the contractor, EPA will take enforcement action appropriate for
private parties. This will usually be an NOV, administrative complaint or
the program equivalent ( depending on the nature of the violation and the
media program guidance ) to the contractor explicitly stating that they are
primarily or individually responsible for correcting the violation in a
timely manner and for responding directly to EPA by the date specified. The
limitations on civil judicial enforcement and on the imposition of penalties
that is applicable to enforcement actions against Federal Executive Branch
Agencies, are not applicable to enforcement actions taken against non-
Federal parties. Where the notice or complaint is sent to the contractor,
it also will state that the involved Federal agency has been simultaneously
notified of the action being taken against the contractor. A copy (cc) of
the action taken against the contractor should not only inform the Agency of
the enforcement action being taken against the contractor but also include a
notice which emphasizes the importance of their responsibility to
effectively oversee their contractor to ensure compliance ( See Appendix
J ). It should also request the Agency's complete cooperation in working
with the contractor to correct the violation and return the facility to
compliance as quickly as possible. In circumstances where Federal funding
is required to correct the violation, the approach and considerations
described in Section B.1.j. are applicable and will be considered in any
agreements reached on expeditious compliance schedules.
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When EPA determines that its initial response should be directed at the
involved Federal facility, EPA will send, where appropriate, an NOV or the
program equivalent to the Federal facility stating that they are responsible
for correcting the violation in a timely manner and for responding to EPA by
the date specified. A copy of the notice will be sent simultaneously to the
involved contractor.
B.2.c Contractor Listing
The regulations at 40 CFR Part 15 establish the contractor listing
program in which facilities that violate Clean Air or Clean Water Act
standards may be put on a List of Violating Facilities. Any facility on the
List is ineligible to receive any non-exempt Federal government contract,
grant, or loan, or other assistance. Contractors operating Federal
facilities are not exempt from being placed on the List.
Such listing is mandatory where a violation at a facility gives rise to
a criminal conviction under Section 113(c) of the CAA or Section 309(c) of
the CWA. It is EPA policy to initiate discretionary listing actions against
recalcitrant contractors who are operating Federal facilities in a manner
which causes continuing or recurring violations of the CAA or the CWA.
Under the regulations, EPA may initiate a discretionary listing action
against a facility only if the facility is already the subject of requisite
EPA or State enforcement action against the contractor. The policies and
procedures for the contractor listing program are described in guidance
issued by OECM "Implementation of Mandatory Contractor Listing," August 8,
1984; "Implementation of Discretionary Listing Authority," July 18, 1984;
and "Contractor Listing Protocols," October 1987.
B.3 Criminal Enforcement Actions at Federal Facilities
In situations where employees of Federal agencies have committed
criminal violations of environmental statutes applicable criminal sanctions
may be sought against such individuals, in the same manner as is done with
respect to employees of other types of regulated entities. Such criminal
violations will be addressed in accordance with the investigative policies
and procedures of the EPA / NEIC Office of Criminal Investigations and the
Agency's criminal enforcement priorities set by the Office of Enforcement
and Compliance Monitoring.
B.4 Press Releases for EPA Enforcement Actions at Federal Facilities
It is the policy of EPA to use the publicity of enforcement activities
as a key element of the Agency's program to promote compliance and to deter
noncompliance with environmental laws and regulations. Publicizing EPA
enforcement actions on an active and timely basis informs both the public
and the regulated community of EPA's efforts to ensure compliance and take
enforcement actions at federal facilities. The issuance of press releases
in appropriate circumstances can be a particularly effective tool for
expediting timely compliance at violating Federal facilities.
Consistent with EPA November 21, 1985, "Policy on Publicizing
Enforcement Actions," ( Appendix L ) the strategy for EPA press releases on
enforcement actions at Federal facilities is as follows:
* Press releases generally will be issued for major enforcement actions
such as:
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- Significant Compliance Agreements or Consent Orders signed by both
parties ( and approvals of major RAPs where Compliance Agreements
are unnecessary ).
- Referral of disputes to EPA Headquarters when agreement cannot be
reached at the Regional level.
- Proposed contractor listings and the administrative decision to
list.
All press releases should be done as a part of communications strategy
which will be developed for all EPA enforcement actions involving Federal
facilities consistent with EPA Order No. 1510.1 "Communication Strategy
Document Development" issued April 7, 1987 and transmitted by memorandum
from the Administrator to all EPA Senior Managers on June 24, 1987. This
order states that "Communication Strategy Documents will be developed for
all major actions by the appropriate AA or RA." "Enforcement Actions" are
included in the definition of Agency actions covered by the Order ( See
section 5 of EPA Order 1510.1 ). At a minimum, these communication
strategies should include provisions for notifications to OEA and affected
Headquarters program offices as well as a senior ranking official at the
affected Federal facility or agency.
EPA's decision to issue a press release and the contents of press
releases are not negotiable with Federal agencies or other regulated
entities. The publicity of enforcement actions against Federal facilities
must be consistent with EPA's "Policy On Publicizing Enforcement Actions"
( GM-46 ) jointly issued on November 21, 1985 by the Office of Enforcement
and Compliance Monitoring and the Office of External Affairs; in addition,
in the case of criminal enforcement actions such publicity must be in
accordance with the EPA guidance memorandum ( GM-55 ) "Media Relations on
Matters Pertaining to EPA's Criminal Enforcement Program" jointly issued by
the Office of Enforcement and Compliance Monitoring and the Office of
External Affairs on December 12, 1986.
B.5 Monitoring Compliance
The EPA Regional office is responsible for monitoring a Federal
facility's compliance with any remedial actions and associated schedules
which have been agreed to in formal EPA enforcement actions. Such
Compliance Agreements or Consent Orders between EPA and Federal facilities
are tracked in the EPA Consent Decree Tracking System maintained by the
Office of Enforcement and Compliance Monitoring. Regional Federal
Facilities Coordinators in cooperation with the regional program offices,
must closely review A-106 submissions against all Compliance Agreements,
Consent Orders, approved remedial action plans or consent decrees to ensure
that projects and corrective actions agreed to are being requested as
scheduled. Compliance monitoring and the A-106 process are further
addressed in Chapter V.
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OMITTED TEXT: Exhibit VI-1 - Timely and Appropriate Enforcement Response
Matrix; Exhibit VI-2 - Federal Facilities Enforcement Response Process;
Exhibit VI-3 - EPA Initial Enforcement Response to Violations at Facilities
with Federal Involvement
VI-23
CHAPTER VII
ROLE OF THE STATES IN RESPONDING
TO FEDERAL FACILITIES VIOLATIONS
VII. ROLE OF THE STATES IN RESPONDING TO FEDERAL FACILITIES VIOLATIONS
The purpose of this Chapter is to clarify the role of the State in
responding to Federal facilities violations and to highlight several aspects
of the State / EPA relationship that will be spelled out in the State / EPA
Enforcement Agreements. This Chapter should be read in conjunction with
Chapter VI, which sets forth the basic approach and procedures EPA and
delegated or approved States will use when responding to violations of
Federal law at Federal facilities.
A. STATE RESPONSE TO FEDERAL FACILITIES VIOLATIONS
States with delegated or authorized Federal programs have primary
responsibility for responding to violations at Federal facilities under most
of the environmental statutes with a few exceptions such as toxic chemical
controls under TACA, and enforcement of certain motor vehicle requirements
under the Clean Air Act. In addition, as discussed in Chapter II.A of this
Strategy most Federal environmental statutes require that Federal facilities
must comply with Federal laws and regulations, but also with all applicable
State and local environmental requirements to the same extent as non-Federal
entities.
EPA retains parallel legal authority and responsibility to enforce
Federal law even in delegated or approved States. As a matter of policy, in
order to avoid duplication of effort where both EPA and States have parallel
enforcement authority, EPA enforcement action in States where programs are
delegated or approved only take place when a State: (1) fails to take
timely and appropriate action, (2) requests EPA to take the lead or decide
that joint enforcement action is appropriate, or (3) in other limited
circumstances as outlined in the "Policy framework for Implementing State /
EPA Enforcement Agreements." The remainder of this section highlights the
following areas concerning State responses to Federal facility violations:
* The use of State enforcement authorities;
* State enforcement response following EPA inspections in delegated
States; and
* The relationship between EPA and State enforcement actions against
Federal facilities.
A.1 Use of State Enforcement Authorities
As noted above, most EPA statutes envision that States with adequate
authority and capability will assume operating responsibility for
environmental programs, including Federal facilities. While the extent of
delegation varies from program to program and State to State, the majority
of EPA's responsibility for direct program administration on a day-to-day
basis including initial obligation for enforcement, has been assigned to the
States through delegation or authorization.
States are not subject to the same constraints as EPA regarding
enforcement actions against Federal facilities. As a result, States
generally may exercise a broader range of authorities and enforcement tools
than EPA to address violations at Federal facilities. States should use the
full range of their enforcement authorities to address Federal facility
violations to the same extent they are used for non-Federal facilities while
meeting the requirements of timely and appropriate enforcement response.
States are also encouraged,
VII-1
wherever possible, to pursue bilateral, negotiated agreements, or consent
orders or decrees as appropriate with Federal facilities or three party
( EPA / State / Federal agency ) agreements as outline in Section B.1.c
where this would facilitate compliance. EPA will, however, deem acceptable
any State enforcement approaches which are at least comparable to EPA's in
meeting goals for timely and appropriate enforcement response.
A.2 State Enforcement Response Lead Following EPA Inspection in Delegated
States
Even where program authorities are authorized or delegated to States,
EPA may conduct inspections of regulated entities, including Federal
facilities, for a variety of purposes including State oversight, response to
citizen complaints, as part of special enforcement initiatives, or where
required by statute ( e.g., RCRA Section 3007(c) and (d) ). EPA generally
provides States with advance notification prior to such inspections and
generally invites them to participate.
When violations are identified through such EPA inspections of Federal
facilities in delegated States, EPA will immediately contact the State and
offer them the first opportunity to pursue timely and appropriate response
with the involved Federal facility, consistent with the State's delegated
authority. EPA will send the inspection report identifying any violations
to the Federal facility simultaneously with EPA's sharing of this
information with the State. An up-front mutual decision will then be made
between EPA and the responsible State agency as to which of them will take
any follow-up action. If a State is unwilling or unable to take action, or
fails to take action in a timely manner after initially agreeing to pursue
the case, EPA will take direct Federal action after advance consultation and
notification of the State pursuant to the State / EPA enforcement agreement.
To the extent possible, arrangements should be made in advance in
individual State / EPA Enforcement Agreements on the types of situations
involving Federal facilities in which the State would request EPA support or
direct action, paying particular attention to these situations in which
follow-up is required to EPA inspections. In particular, in the case of a
State's use of an EPA inspection as the basis for its own action, EPA and
the State should agree on how EPA evidence and expertise will be utilized in
taking State enforcement action. How the State use EPA's inspection report
will be up to the State so long as the state's response to any violations
identified by EPA's inspection report are addressed in a timely and
appropriate manner.
A.3 EPA Involvement in State Enforcement Actions
Because of EPA's ongoing responsibility to provide technical assistance
and support to Federal Agencies in achieving compliance, as required under
E.O. 12088, EPA may need to be involved in assisting to resolve
noncompliance problems even when a State takes the lead in an enforcement
action. If either the State or the Federal facility in violation requests
EPA's involvement, EPA will participate to the extent determined appropriate
by affected Regional program division directors in consultation with the
Federal Facility Coordinator. EPA's involvement should focus more on
resolving disputes rather than on providing project-level technical
assistance to the Federal facility which could conflict with the State's
ongoing enforcement proceedings.
As directed in E.O. 12088, EPA has a duty to "make every effort to
resolve conflicts regarding such violations between Executive agencies and,
on request of any party, such conflicts between an Executive agency and a
State, interstate or a local agency." However, in each such case, EPA's
involvement will respect the perogatives of the State to
VII-2
pursue independent enforcement action and EPA will be careful not to
interfere with State enforcement proceedings. EPA will offer both parties
its assistance to promote a speedy resolution of identified problems, and
communicate fully with both the State agency and affected Federal agency
officials of its responses and suggested role consistent with EPA's conflict
of interest rules and judicial ethics.
A.4 Relationship of State Administrative and Judicial Citizen Suits to EPA
Compliance Agreements
Usually, when EPA pursues a judicial enforcement action against a
violator, it serves as a bar to further enforcement action by States or
citizen ( under citizen suit provisions provided in most of the statutes )
for similar action for the same violation. The Federal EPA enforcement
process described for Executive Branch Agencies relies heavily on Compliance
Agreements, which do not bar State administrative or judicial actions or on
Compliance Agreements, which do not bar State administrative or judicial
actions or citizen suits to compel compliance by Federal Agencies.
Therefore, when EPA has negotiated a Compliance Agreement, as opposed to
issuing an Order on consent, it would not legally affect the rights of non-
parties to the Agreement. Despite EPA's belief that in the vast majority of
cases Compliance Agreements should be a very effective means of ensuring a
prompt return to compliance, there may be circumstances in which States or
private citizens choose to exercise their rights to take further enforcement
action. EPA encourages such non-parties to the EPA / Federal agency
Compliance Agreement to fully consider and use it as a basis for relief
sought in their own actions to seek expeditious compliance. It is also for
the above reasons that it is desirable for States to sign Compliance
Agreements and Consent Orders along with EPA and involved Federal
facilities. In addition, EPA compliance agreements may contain
enforceability clauses which recognize the rights of states and citizens to
enforce these agreements through the citizen suit provisions of the relevant
statutes.
B. FEDERAL FACILITIES IN THE STATE / EPA ENFORCEMENT AGREEMENTS PROCESS
State and Federal roles are defined through negotiated multi-year
State / EPA Enforcement Agreements, which are reviewed annually on a State-
by-State basis for each environmental program. Implementation of these
agreements is guided by the EPA "Policy Framework for State / EPA
Enforcement Agreements" ( issued June 26, 1984, revised and reissued June,
1986 ), associated national program implementing guidance, and an annual
guidance memo on the enforcement agreements process from the Deputy
Administrator to the Regions. The purposes of these Agreements are: to
establish clear expectations for what constitutes a good State or EPA
enforcement program through oversight criteria specified in advance, to
establish clear roles and responsibilities for State and Federal enforcement
to avoid duplication of effort and use limited resources effectively and
efficiently, and to ensure effective national reporting of accomplishments.
The Regions have a great deal of flexibility in determining the form of
the agreements and the internal process for handling the agreements. Some
Regions have umbrella agreements that include all programs in one
comprehensive agreement negotiated between the RA and the State
Environmental Commissioner. Other Regions have program-specific agreements
with the respective State Agency. To the extent possible, Regions are
encouraged to incorporate the enforcement agreement provisions into existing
documents, e.g., grants, Memorandum of Understanding's, State / EPA
Agreements.
The timing of negotiations / reviews of the agreements depends on the
vehicle chosen and the Region or State planning cycle. Regional program
staff should consult with the
VII-3
Federal Facilities Coordinator in the development and negotiation of the
Enforcement Agreements.
While most aspects of the Agreements pertain equally to Federal and non-
Federal facilities, this Chapter focuses on how Federal facilities should be
explicitly addressed in the State / EPA Enforcement Agreements in three of
the areas covered in the Policy Framework: clear oversight criteria,
criteria for direct Federal action, and advance notification and
consultation.
B.1 CLEAR OVERSIGHT CRITERIA AND OVERSIGHT APPROACH
There are seven general criteria mentioned in the Policy Framework and
covered in various forms in program guidance:
B.1.a Identification of and Priorities for the Regulated Community
States will be expected to have included Federal facilities in their
inventories and program information systems, appropriately identified as
such through the use of assigned Federal facility ID numbers. The Federal
Facility Coordinator will make the information available to the State on the
different types of Federal facilities using the FINDS information system.
As part of the enforcement process, EPA Regions and the State will review
any special needs for identifying and tracking Federal facilities.
B.1.b Clear and Enforceable Requirements
Requirements established through permits, compliance agreements,
administrative orders, and consent decrees should define in enforceable
terms a timetable for Federal facility remedial actions. In particular, EPA
and the States need to assure that Federal facilities have permits that are
current. If there are permitting problems at Federal facilities, Regions
and States should develop a strategy for addressing them as part of the
annually work plan negotiations process, consistent with national program
permitting strategies, where applicable.
B.1.c Accurate and Reliable Compliance Monitoring
EPA and the State will review the planned inspection schedules for the
coming year for each program to ensure that Federal facilities are inspected
at required frequencies.
EPA will assist in resolving any particular problems of access to
facilities that the States may encountering, including instructions on how
to obtain security clearances, where necessary.
B.1.d High or Improving Rates of Continuing Compliance
As part of each media program tracking system, administering agencies
should track the process of returning Federal facility significant violators
to compliance. To ensure broad Federal facility compliance, the States may
asked to participate in targeted initiatives in compliance monitoring and
enforcement for Federal facilities of specific agencies or by facility type.
VII-4
B.1.e Timely and Appropriate Enforcement Response
States are responsible for taking timely and appropriate enforcement
action, as described in Chapter VI. EPA Regions and States are to reach
agreement on adapting national definitions of appropriate enforcement
response and timeframes to state-specific authorities and procedures.
Regions and States should discuss the enforcement approach the State
generally plans to use for responding to Federal facility violations. They
should also reach agreement on any differences in procedure that the State
plans to use, if any that are different from those used for non-Federal
facilities. For example, the Region and State should discuss any upfront
agreements the State wants to made about taking enforcement action based on
an EPA inspection ( e.g., for statutorily-required EPA inspections of
Federal TSD's in RCRA ), and agree on how Federal or State evidence and
expertise will be used in taking such action.
B.1.f Accurate Recordkeeping and Reporting
In order to support an effective program, administering agencies must
have timely, complete, and accurate information on Federal facility
compliance status and enforcement actions. States should report Federal
facility compliance data as part of each program's reporting measures and
commitments ( e.g., SPMS and program-specific system ). The Regions should
also request States to provide different information on Federal facilities
compliance status if mutual agreement can be reached as part of the State /
EPA enforcement agreements process. EPA is especially interested in
receiving copies of State enforcement actions at Federal facilities.
B.2 DIRECT EPA ENFORCEMENT
EPA will take direct Federal action principally where a State is
unwilling or unable to take "timely and appropriate" enforcement action, or
where the State asks EPA to join in or take enforcement action. To the
extent possible, arrangements should be made in advance, as part of the
enforcement agreement, concerning the types of situations in which the State
would request EPA to take direct enforcement action to address Federal
facility violations.
B.3 ADVANCING NOTIFICATION AND CONSULTATION
As part of the agreements process, Regions and States are to agree in
writing as to who, how, and when EPA will notify and consult with the State
agency in advance of Federal inspections and enforcement actions. Federal
facilities may involve a greater or different need for coordination between
States and Regions than non-Federal facilities, particularly where the
federal facilities request EPA technical assistance or where EPA is required
to conduct an inspection ( e.g., under RCRA ). Because Federal facilities
compliance problems are often of a multi-media nature, it may be appropriate
to arrange a single point of contact in a State, statewide or in a
particular program, for Federal facility issues.
The advance notification and consultation protocols in the State / EPA
Enforcement Agreements should incorporate any of the above-mentioned 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 submissions, and include plans for an
annually review of patterns of compliance problems at Federal facilities in
the State.
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CHAPTER VIII
EPA ROLES AND
RESPONSIBILITIES
FOR
PROGRAM IMPLEMENTATION
VIII. EPA ROLES AND RESPONSIBILITIES
FOR PROGRAM IMPLEMENTATION
The Federal Facilities Compliance Program is a multi-media program
requiring close coordination and cooperation among all involved parties.
The purpose of this Chapter is to clarify the roles and responsibilities of
EPA Headquarters staff and the Regional offices for implementing the Federal
facilities program and this Strategy. This Chapter is necessary in order to
ensure implementation and integration of all elements of this strategy into
the various media programs and EPA's overall internal management systems.
The EPA tasks for ensuring Federal facilities compliance are divided
between the Regional offices and Headquarters staff. Coordination among
both staffs is necessary to ensure that this Strategy is executed consistent
with national and program policies, procedures, and guidance. Therefore,
this Chapter has been divided into the following sections:
(1) Regional office staff - This section addresses the roles and
responsibilities of the Regional Administrator, Deputy Regional
Administrator, Regional Counsel Regional Program staff / Division
Directors, and Regional Federal Facilities Coordinators for
implementing various aspects of the Strategy.
(2) Headquarters offices - This section describes the roles and
responsibilities of those Headquarters offices that have certain
responsibilities for coordinating and working with the Regions on
Federal facility activities.
Responsibilities for implementing key strategy features such as
identification of the regulated community, technical assistance / training,
compliance monitoring, involvement in the A-106 review process, and
participation in the dispute resolution process are described for
Headquarters and Regional program offices and staff.
A. REGIONAL OFFICE STAFF
The following section describes the roles and responsibilities of the
Regional office staff with regard to the Federal facilities program. See
Exhibit VIII-1 at the end of this Chapter for a diagram which depicts these
Regional relationships.
A.1 Regional Administrator
The Regional Administrator ( RA ) ensures that Agency policies and
guidance on implementing Executive Orders 12088 and 12146 and the
environmental statutes are effectively carried out. The RA is responsible
for the level of Federal facility compliance in the Region through
encouragement of and support for the Regional staff in their efforts to
resolve compliance problems at Federal facilities. The RA will formally
refer disputes with other Federal agencies that cannot be resolved at the
Regional office level within established media timeframes to the Assistant
Administrator ( AA ) for the affected media program, the AA for External
Affairs and the AA for OECM. These referrals will be signed by the Regional
Administrator.
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A.2 Regional Administrator / Deputy Regional Administrator
The RA or Deputy Regional Administrator ( DRA ) defines the following
based on internal Regional operating procedures consistent with the
guidelines in this strategy:
(a) Involvement of Regional Counsels and the role of Program Divisions
in the issuance of enforcement actions and negotiations of
compliance agreements for Federal facilities;
(b) The process for evaluating inspection schedules for Federal
facilities and opportunities for multi-media inspections and the
respective roles of the Program Divisions, Environmental Services
Divisions ( ESD's ) and Federal Facilities Coordinators in this
process;
(c) Designation of Regional staff responsible for signing Compliance
Agreements, NOV's, Consent Orders, etc., for Federal facilities
violations;
(d) Assurance that Regional program reviews / audits of delegated State
programs include a review of the State's progress in addressing
Federal facilities compliance problems and ensuring that Federal
Facilities Coordinators are informed and involved in these
reviews;
(e) Responsibilities for Regional review of Federal agency A-106
submissions and coordination with States on the A-106 process; and
(f) Assurance that Federal facilities compliance is specifically
addressed in State / EPA enforcement agreements.
In appropriate cases where agreement cannot be reached in the
negotiation of Compliance Agreements or Consent Orders with Federal
facilities, Regional staff should escalated unresolved issues to the RA /
DRA for resolution within media specific timely and appropriate timeframes
prior to issuance of a proposed Order. The RA / DRA may then choose to
contact an equivalent level official at the involved Federal agency to
attempt to resolve remaining issues.
A.3 Regional Counsel
Upon request, the Regional Counsel provides legal advice to the RA, the
Federal Facilities Coordinator, and the Regional media program staff on:
* Determining the compliance status of Federal facilities;
* Evaluating the sufficiency of data supporting compliance
determinations;
* Negotiating agreements on solutions to compliance problems;
* Resolving compliance disputes with Federal facilities; and
* Reviewing draft Compliance Agreements and Consent Orders for their
legal sufficiency and consistency with Agency policy.
Each Region should clearly identify the role of the Regional Counsel in
the Federal facilities compliance process. It is imperative, however, that
the Regional Counsel consult with OECM and Headquarters Office of General
Counsel on questions of national significance concerning Federal facilities.
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A.4 Regional Program Staff / Division Directors
Each Region is responsible for designating a staff person to serve as
the primary point of contact for the Federal Facilities Coordinators to deal
with on media-specific Federal facilities compliance issues. This designee
also is responsible for the following activities.
Identifying the Regulated Community - Ensure that Federal facilities data in
program information systems is maintained through the use of a support
identification code for Federal facilities.
Technical Assistance / Training - Assist Federal Facilities Coordinators
with their Regional multi-media technical program workshops for Federal
facilities in their Region. In addition, provide the Federal Facilities
Coordinator and OFA, at the beginning of the fiscal year, with the program's
annual training plan and notify the Federal Facilities Coordinator of all
program training courses and workshops which will be open to Federal
facilities in the Region. On a quarterly basis, notify the Federal
Facilities Coordinator of availability of spaces for Federal facilities
participants.
On-the-job training opportunities should be considered for officials of
other Federal agencies where feasible, in cooperation with Regional Federal
Facilities Coordinator.
Compliance Monitoring - Ensure that Federal facilities are receiving the
required number of inspections for programs where EPA has the lead. This
includes conducting at least the same percentage of program oversight
inspections for Federal facilities as is done for other facilities in
delegated or approved states. The Regional media-program contact should
provide the Regional Federal Facilities Coordinator with copies of all EPA
inspection reports of Federal facilities.
State Oversight - Develop and negotiate the State / EPA Enforcement
Agreements in consolation with the Federal Facilities Coordinator and ensure
that at least the required number of inspections of Federal facilities are
being conducted in delegated or authorized States.
The Regional media-contact should ensure that a separate component in
the Regional reviews / audits of delegated programs is included on State
handling of Federal facilities compliance problems. This insert should be
developed in consultation with the Federal Facilities Coordinator.
Responding to Violations - At the beginning of the fiscal year and
periodically as required by the program, the Regional media-contact in
coordination with the Regional Federal Facilities Coordinator, identifies
those Federal facilities in significant noncompliance and following media-
program Strategic Planning and Management System ( SPMS ) requirements,
reports program actions against the identified Federal facilities
Significant Noncompliers ( SNCs ) to Headquarters. Also, works with the
Federal Facilities Coordinator to establish quarterly targets for Federal
facilities inspections.
Following consultation with the Regional Federal Facilities Coordinator,
the program offices are responsible for issuing NOV's, Compliance
Agreements, and/or Consent Orders, where appropriate, for Federal facilities
violations within the time frames established in program-specific timely and
appropriate guidance. Program Division Directors have the responsibility
for sign-off on Federal facilities NOV's, Compliance Agreements and Consent
Orders in most Regions consistent with the delegations of
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authorities for their respective media. Federal Facilities Coordinators
should be notified by Division Directors prior to issuance of any
enforcement action to a Federal facility. For any disputes formally
referred to Headquarters under the RA's signature, the program offices are
responsible for formulating referral packages, in consultation with the
Federal Facilities Coordinator.
Where there is contractor or other private party involvement at a
Federal facility ( e.g., GOCO's ), the program office must ensure that other
parties receive a copy of any enforcement action sent to any of the involved
parties.
Involvement in A-106 Review Process - Another responsibility of the Regional
media-program contact is to review all Federal agency A-106 submissions and
provide comments to the Federal Facilities Coordinator on media-related
pollution abatement projects in the areas of engineering, timeliness, and
cost to ensure that proposed projects have been appropriately designed and
adequately funded to meet compliance requirements. In addition, Regional
media-program contacts must work with the Federal Facilities Coordinator on
identified media program priority areas that should be targeted for A-106
projects by Federal agencies.
As requested, media-program contacts should participate in on-site
preliminary planning and design review conferences for significant projects
with the Federal Facilities Coordinator.
Consent Decree Tracking System - In consultation with the Regional Federal
Facilities Coordinator, media-program contacts will report to HQ / OECM on
the status of compliance the schedule and actions agreed to in an EPA
Compliance Agreement or Consent Order with Federal facilities, following
guidance on the Agency's Consent Decree Tracking System. Items reported
should be consistent with SPMS requirements for consent decrees. ( This is
consistent with the guidance on "Consent Decree Tracking," Memorandum from
Alvin L. Alm, Deputy Administrator, date August 15, 1984. )
A.5 Regional Federal Facilities Coordinator
The Federal Facilities Coordinator is responsible for coordination with
Regional program offices on implementation of Federal facilities compliance
activities in the Regional office. The Coordinator also is the Regional
liaison with the Office of External Affairs ( OEA ) and serves as the
primary point-of-contact for EPA with all Federal agencies in the Region on
environmental compliance matters. Duties of the Coordinator typically
include:
* Ensuring that the Regional staff are knowledgeable on guidance issued
by OEA;
* Coordinating and quality assurance of Regional A-106 reviews;
* Monitoring actions being taken by the Regional staff to resolve
compliance problems at Federal facilities;
* Coordinating negotiations of Compliance Agreements; and
* Providing data to OEA on the compliance status of Federal facilities
located in the Region.
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Besides those duties mentioned above, the Federal Facilities Coordinator has
specific responsibilities for implementing various aspects of this Strategy
and the Federal facilities program as highlighted below.
Identifying the Regulated Community - Regional Federal Facilities
Coordinators regularly identify Federal facilities information, by type of
facility, ( i.e., GOGO, GOCO, POGO, etc. ) in the Facility Index System
( FINDS ) information system. Data for this system is provided by Regional
program offices and States in order to track the compliance status of
Federal facilities. In addition to identifying the regulated community via
FINDS data, all Coordinators should develop a name list for applicable media
programs of those Federal facilities minor sources considered to be
environmentally significant ( limited to no more than to 10% of all minor
sources per program ) and monitor the compliance status of these sources.
Besides maintaining the list of minor sources, they also track those
facilities which are the most environmentally significant in each Region.
This list is updated annually in consultation with media program staff.
Technical Assistance / Training - The Federal Facilities Coordinators are
tasked to conduct at least one Regional multi-media technical program
workshop annually for Federal facilities in their Region with assistance
from program offices. In addition, they invite Federal agency environmental
personnel in each Region to bimonthly meetings to discuss new and upcoming
program, generic compliance problems, etc.
The Coordinator serves as the Regional clearinghouse for information
exchange with Federal agencies on new regulations, policies, etc. They also
identify appropriate EPA training courses and workshops for the Federal
agencies and in coordination with media program offices and conduct
compliance program assistance visits to facilities to help them with overall
environmental program practices and management.
As part of their technical assistance role, Federal Facilities
Coordinators provide Federal agencies assistance with designing
environmental auditing programs through training, workshops, guidance
manuals, etc.
Compliance Monitoring - Federal Facilities Coordinators work with Regional
program offices and Environmental Services Division ( ESD ) to establish
quarterly targets for Federal facilities inspections and schedule multi-
media inspections, as appropriate. As part of this effort, the Coordinators
provide ESD annually with a name list of Federal facilities that are
appropriate candidates to receive multi-media inspections based upon their
environmental significance in a number of media program areas.
Part of their compliance monitoring tasks involve coordination with
program offices prior to negotiations with States on the State / EPA
enforcement agreements to decide on a mutually acceptable approach to
receive compliance and inspection data on Federal facilities from delegated
or approved States.
Involvement in A-106 Review Process - Coordination of the Regional office
review of Federal agency A-106 submissions is overseen by the Federal
Facilities Coordinators in accordance with national guidance provided by OFA
and OMB. The Coordinators work with the program offices in evaluating the
adequacy of proposed projects in the areas of engineering, timeliness and
cost to ensure that the projects have been appropriately designed and
adequately funded to meet all compliance requirements. The Coordinators are
responsible for final quality assurance of Regional reviews and for the
timely submission of materials to OFA.
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Copies of the A-106 submissions are provided by the Coordinators to the
States in January of each year for their review. Once the States receive
their copies, the Coordinators conduct an annual meeting with appropriate
State representatives to discuss their comments on A-106 projects as well as
identified Federal agency patterns of noncompliance.
Federal agencies are informed of selected annual program priority areas
toward which A-106 projects should be targeted. Federal Facilities
Coordinators work with the agencies to ensure that A-106 projects are
proposed for facilities with compliance problems.
Federal Facilities Coordinators are available to participate in
preliminary planning and design review conferences on significant projects
at Federal facilities, as appropriate. They may also request media program
technical assistance when necessary.
Responding to Violations - At the beginning of the fiscal year, in
coordination with the Regional program offices, the Regional Federal
Facilities Coordinators identify the names of those Federal facilities in
significant noncompliance. They assist with negotiations of Compliance
Agreements between EPA media programs and involved Federal agencies to
resolve identified compliance problems and violations. As part of this
process, the Coordinator may informally notify the Federal facility of
identified violations following an EPA inspection and prior to issuance of
written notification of violation. The FFC should initiate informal
notification process after first consulting with the affected media program
offices.
Dispute Resolution Process - As described in Chapter VI, Federal Facilities
Coordinators may informally request Headquarter's OFA assistance in
resolving disputes at any point in the Federal facilities compliance
resolution process. They also will assist the program office in developing
referral packages for disputes formally referred to Headquarters under the
Regional Administrator's signature.
Consent Decree Tracking - Each Coordinator provides the program offices
assistance with tracking the status of EPA Compliance Agreements and Consent
Orders with Federal facilities for reporting to Headquarters and input into
the Agency's Consent Decree Tracking System.
B. HEADQUARTERS OFFICES
The following Headquarters staff have certain responsibilities for
working with the Regions on Federal facilities activities, resolving
compliance problems, and developing policy and guidance:
* Program Offices;
* OEA / OFA;
* OECM;
* OGC; and
* Office of the Administrator.
See Exhibit VIII-2 at the end of this chapter for a diagram depicting these
Headquarters relationships.
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B.1 Headquarters Program Offices
In order to fully implement this Strategy it is critical that the
program offices work with OFA to ensure that media-specific regulations,
policies and guidance, and Federal facilities compliance guidance are
mutually consistent and address Federal facilities compliance issues where
appropriate. Also, it is important that the program offices:
* Meet with OFA periodically to identify and discuss generic compliance
problems at Federal facilities.
* Continue to provide OFA with speakers, documents and other
assistance for the monthly meetings of the EPA / Federal Agency
Environmental Roundtable.
* Ensure that Headquarters evaluations of Regional programs address
Federal facilities compliance and that program offices report the
results of these evaluations to OFA.
In addition to these general responsibilities, Headquarters program offices
are tasked to ensure that specific initiatives of this Strategy are
integrated program-wide as discussed below.
Identifying the Regulated Community - Program office staff will maintain
current Federal facilities data on program information systems and data
bases for tracking purposes based upon input from Regions and States and
ensure that proper Federal facilities identification numbers are included
for all appropriate sources.
Compliance Monitoring - Headquarters program office staff will ensure that
the required number of Federal facilities inspections ( of majors, etc. )
are being conducted annually by Regions and the States, as appropriate.
Headquarters will verify that the Regions are conducting a least the same
number of oversight inspections for Federal facilities as for other
facilities in delegated States.
Dispute Resolution Process - The involved media program office shall have
the lead in resolving disputes referred to Headquarters, in cooperations
with OFA and OECM. Each of the Headquarters program offices shall provide
technical advice and assistance in the resolution of disputes upon referral
from the Region. Headquarters media program offices shall notify OFA and
provide copies of any Federal facility disputes which have been referred to
their office, either formally or informally.
Compliance Statistics - Headquarters program offices will work with OMSE,
OECM and OFA to improve the quality of Federal facilities data currently in
EPA's various Headquarter and Regional media tracking and information
systems. Program offices will periodically review their definitions of
"majors" to ensure that Federal facilities are adequately addressed. In
addition, appropriate offices will issued guidance requiring Regions and
States to code input data into existing tracking and information systems
with Federal facilities indicators and identification numbers as
appropriate. Periodic management reports for the Federal facility subset of
regulated sources for submittal to OFA will be prepared by program office
staff, as requested.
Involvement in A-106 Review Process - Review of Regional program staff A-106
submissions by the program offices is necessary to ensure that media program
priority areas are reflected in proposed projects and to identify compliance
problems. All program
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office should meet annually with OFA to update media program priority areas
that are to be addressed by Federal agencies through the A-106 process.
Development of Policy and Guidance - Media-specific policies and guidance
will be developed by appropriate program offices. These policies and
guidance should, where appropriate, address implementation of program
requirements by Federal agencies. Upon request by the media program office,
OFA can coordinate Federal agency review and comment on media program
documents.
B.2 Office of External Affairs / Office of Federal Activities
OEA / OFA is responsible for ensuring effective implementation of
Section 1-6 of Executive Order 12088 which specifies the administrative
procedures to be used in resolving compliance problems at Federal
facilities. OEA / OFA also chairs the EPA Standing Committee on E.O. 12088.
OEA establishes applicable Agency policy and guidelines on Federal
facilities compliance in consultation with OECM, OGC and the Headquarters
program offices. Implementing operating guidance for the Regional Federal
Facilities Coordinators is developed and issued by OEA / OFA.
OFA conducts annual audits ( i.e., the FARES review ) of Regional
Federal facilities programs to ensure proper adherence to national guidance,
thorough coordination with Regional program offices, adequate and ongoing
assistance to Federal agencies, and overall consistency of the program with
this Strategy.
OEA is the principal point-of-contact with the national offices of other
Federal agencies through the EPA / Federal Agency Environmental Roundtable.
OEA assists affected Headquarters program offices in resolving Federal
facilities compliance problems which the Regional offices escalate for
dispute resolution. In addition, OEA actively participates in Agency
strategic planning and management systems to ensure Federal facilities
compliance concerns are being integrated into program priorities and plans
and provides analysis of patterns of Federal facilities noncompliance to
program offices on an annual basis.
Periodic reports on the compliance status of Federal facilities are
prepared by OEA / OFA for administrative purposes. A quarterly report
identifying major Federal facilities which are not meeting substantive
pollution control requirements is produced for the Administrator. The
Federal agencies are provided, semi-annually, with a listing of all non-
complying facilities under their jurisdiction. A similar report is
submitted annually to the OMB. This OMB report will be expanded to include
information on the compliance status of all Federal facilities. In
addition, OEA / OFA conducts annual meetings with Headquarters offices of
other Federal agencies to discuss identified patterns of noncompliance.
Other OEA / OFA Federal facilities responsibilities are addressed below.
Identifying the Regulated Community - Coordination with Headquarter program
offices and the FINDS office is done by OEA / OFA staff to ensure that
program information systems have adequate and current information for
tracking Federal facilities compliance status.
Technical Assistance / Training - OEA / OFA conduct monthly meetings of the
EPA Federal Agency Environmental Roundtable for top Federal agency officials
to exchange information
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on new regulations, policies, etc. Participation of program office staff is
solicited regularly for these meetings.
Currently, OEA / OFA is implementing a comprehensive system for
technical assistance, training and information transfer in cooperation with
program offices and Regional Federal Facilities Coordinators.
OEA /OFA serves as a national clearinghouse for opportunities for other
Federal agency participation in EPA training courses and workshops, and
technical assistance services available from the National Enforcement
Investigations Center ( NEIC ) and the Office of Research and Development
( ORD ) labs. Also, ensures that all of the EPA Hotlines are accessible to
Federal agency personnel.
OEA / OFA coordinates extensively with the Office of Administration and
Resources Management ( OARM ) in the planning and development of the EPA
Training Institute to ensure opportunities are available for Federal
facilities participants. Also, coordination with OECM on the development of
the basic inspector training course occurs for the same purpose.
Federal agencies are encouraged to implement environmental auditing
programs and OEA / OFA provides assistance in designing and establishing
such programs through workshops, manuals, guidance, etc.
Dispute Resolution Process - When requested by Regional program staff, in
consultation with the Federal Facilities Coordinator, OFA will provide
informal assistance by working with involved agencies' parent offices to
attempt to resolve disputes. Such assistance includes working with the
parent agency of the noncomplying facility, where appropriate, to ensure
that funds are made available to correct identified violations as
expeditiously as possible or to secure the cooperation of a recalcitrant
facility manager.
After the RA has tried but been unable to resolve disputes within
established media timeframes, the cases are formally referred jointly to
Headquarters media program office, OECM and OFA for resolution. Upon
receipt of the referral package, OFA or the media program office will notify
the RA in writing of their receipt of the package.
OEA / OFA may assist in negotiations of a mutually acceptable solution
between EPA media programs and the official responsible for environmental
compliance matters at the Headquarters of the parent agency. If this effort
fails, within a maximum of 90 days the AA for the affected media program
office escalates the problem to the EPA Administrator for resolution.
OFA will develop and maintain a system for notifying the Regional
Administrator informally on a monthly basis and formally on a quarterly
basis on the status of those Federal facilities actions formally referred to
Headquarters.
Involvement in a-106 Review Process - OEA / OFA is tasked to coordinate the
Agency-wide review of Federal agency A-106 submissions via the Pollution
Status Report and produce the annual report to OMB evaluating proposed
projects for use by OMB in budget review process.
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B.3 Office of Enforcement and Compliance Monitoring
OECM advises the Administrator, and OEA, and provides guidance to the
Regional Offices on general enforcement and compliance policy issues
relating to Federal facilities including:
* Determining the compliance status of Federal facilities;
* Assessing the sufficiency data supporting compliance determinations;
* Conducting negotiations of agreements on solutions to compliance
problems;
* Resolving compliance disputes with Federal facilities;
* Assuring that Federal facilities compliance efforts support nations
compliance and enforcement objectives;
* Developing ( with OFA and media programs ) compliance and enforcement
strategy guidance for Federal facilities;
* Coordinating and overseeing the State / EPA enforcement agreements
process;
* Maintaining the Agency consent decree tracking system, including
tracking of Federal facilities compliance agreements; and
* Conducting follow up on possible criminal violations.
OECM also provides assistance and expertise in the use of alternative
dispute resolution procedures for resolving compliance problems at Federal
facilities.
B.4 Office of General Counsel
OGC provides legal advice and assistance to the Administrator, OEA,
media program offices and the Regional counsels on legal matters and
interpretations related to Federal facility compliance with the
environmental statutes. OGC also plays a major role in resolving
interagency legal disputes and in making referrals to the Department of
Justice under Executive Order 12146 when necessary.
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OMITTED TEXT: Exhibit VIII-1 - EPA Regional Office Staff; Exhibit VIII-2 -
EPA Headquarters Office Staff
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