EPA Compliance & Enforcement Expectations Scott Gordon, Director Office of Enforcement Coordination & Mark Fite, Acting Deputy Director APTMD

The Biggest of Big Pictures EPA & State Programs Compliance Monitoring Strategies Grant Commitments Memorandum Of Agreements Enforcement Response Policies

National Enforcement Expectations for Regions For the FY2016-2017 fiscal cycle, the Office of Compliance Assurance (OECA) has maintained its national area of focus on Strengthening State Performance and Oversight as detailed in the April 21, 2016 OECA National Program Managers (NPM) Guidance. The guidance states “as part of its oversight responsibilities, the EPA must clearly articulate expectations for state program performance and evaluate the states in a fair, consistent and equitable manner”.

Compliance Monitoring Strategy The Clean Air Act Stationary Source Compliance Monitoring Strategy: provides national consistency in developing stationary source air compliance monitoring programs, while at the same time provide states/locals with flexibility to address local air pollution and compliance concerns. improves communication between states/locals and regions on stationary source air compliance monitoring programs, and enhance EPA oversight of these programs. provides a framework for developing stationary source air compliance monitoring programs that focuses on achieving measurable environmental results. provides a mechanism for recognizing and utilizing the wide range of tools available for evaluating and determining compliance.

CAA Stationary Source Compliance Monitoring Strategy Revised on July 14, 2014 For your reading enjoyment- https://www.epa.gov/sites/production/files/2013- 09/documents/cmspolicy.pdf

Alternate Compliance Monitoring Strategy Enforcement Grant Planning Process and Recommended Changes Annually Revised CMS Strategies & Commonalities Across Program Areas CAA Flexibilities General Discussion and Questions

Coordination or Consultation Roles Program Alternative Plan OECA Coordination or Consultation Roles Water Regions should seek OECA consultation and review before finalizing the state’s alternative plan. OECA’s review and consultation role for alternative plans will enable HQ to track the alternative plans and ensure national program integrity. Review will begin by August 15 of the year or unless different schedule is set RCRA Consultation with headquarters is not required, but a copy of the plan should be provided to the Office of Compliance Air Regions submit plans to HQ/OC for concurrent review to enable HQ to track the alternative plans and maintain national consistency. OC will also provide input on the alternative plans that the region should include in their discussions with the state agency. If variation from traditional sources is significant enough, OC may wish to concur on the final plan.

Revised CMS: Alternative Plans An “alternative plan” includes one or more compliance monitoring commitments that deviate from the national goals and flexibilities. A state can propose an alternative plan to EPA for consideration Before EPA region approves the plan, the region and OECA review the draft alternative plan to ensure overall program integrity and to facilitate national consistency – CWA & CAA OECA consultation and review required by CWA & CAA; Copy of plan requested for RCRA Some Programs “offer” similar flexibilities outside the submission of alternative plans 2014 CMS lays out a detailed process for alternative CMS plans that is comparable to the process under the Clean Air Act and Resource Conservation and Recovery Act CMSs. Any state or region that deviates from the national compliance monitoring goals set forth in the CMS metrics will need to develop an alternative CMS plan. OECA will review proposed alternative plans and work with EPA regions to ensure alternative approaches preserve program integrity and national consistency without causing unnecessary delays of the annual CMS planning process for each state. 

Revised CMS: Alternative Plans Proposed “alternative plan” should include: Description of overall approach, including affected universe(s) and rationale for deviations/trade-offs Explanation of how state determined the alternative approach will not have negative public health/environmental impact When developing an alternative CMS plan, regions and states should consider the following facility-specific questions before proposing a focused compliance inspection and/or off-site desk audit: Is the facility currently subject to an enforcement action or a compliance schedule resulting from an enforcement action? Has the facility been reported in Significant Noncompliance (SNC) within the previous four quarters? Does the facility have any unresolved single-event violation(s) identified in prior inspection(s)? Does the facility discharge listed pollutants to impaired waters? Does the facility have any known potential to impact drinking water supplies? New compliance monitoring activities – Focused Inspection and Off-site Desk Audit – can be included in a proposed alternative CMS plan. 2014 CMS includes special conditions and considerations for states and regions interested in substituting these activities for traditional comprehensive on-site inspections.

CAA Flexibilities That Do Not Require Alternative Plan Metric (CAA Subprogram) 2014 CMS Focus on Title V Majors & Synthetic Minor Sources that emit or have potential to emit 80% of the Title V major source thresholds 2014 Flexibilities Partial Compliance Evaluations Off-site Evaluations ID of major “mega sites” allowing sources to receive full compliance evaluation over an extended 3 year time period Self Monitoring Information

CAA Flexibilities - Alternative Plan Needed Metric (CAA Subprogram) 2014 CMS Focus on Title V Majors & Synthetic Minor Sources that emit or have potential to emit 80% of the Title V major source thresholds 2014 Flexibilities Strategically Shift Resources to Other Source Categories of Localized Concerns or Priorities (HQ’s Review Required)

EPA Compliance Assurance Oversight Tools State Review Framework Annual Data Metric Analysis Oversight Inspections Grant/MOA Commitment Review Differential Oversight

State Review Framework Designed collaboratively in 2004 by EPA and the Environmental Council of the States (ECOS). EPA and states use the framework to assess their performance in enforcing water, air and waste permits, and as oversight of state and EPA enforcement. EPA conducts regional, state and local reviews on a five year cycle. SRF Round 3 concluding & Round 4 planned for FY18.

SRF Components Data - completeness accuracy and timeliness of data entry into national data systems Inspections- meeting inspection and coverage commitments inspection report quality and report timeliness Violations- identification of violations determination of high priority violators for the clean air act program and accuracy of compliance determinations Enforcement - timeliness and appropriateness and returning facilities to compliance Penalties - calculations including gravity and economic benefit components assessment and collection

Three Phases of the SRF Review Analyzing information from national data systems in the form of data metrics Reviewing facility files and compiling file metrics Development of findings and recommendations

Latest SRF Findings in Air - States

Latest SRF Findings in Air - Locals

General Trends in SRF CAA Findings Proficient Areas Completion of Commitments Inspection Coverage Identification of HPVs Enforcement Actions Promote a Return to Compliance

General Trends in SRF CAA Findings Improvement Areas Data Accuracy Timeliness of Data Entry Quality of Inspection Reports (including timeliness) Enforcement Actions that are Timely and Appropriate Penalty Calculation Methods (gravity and economic benefit)

SRF Next Steps Expect Additional Focus on Resolution of SRF Finding and Recommendations Communication from Air Enforcement Branch and the Office of Enforcement Coordination SRF Round 4 Planning Starts NOW Contact Kelly Sisario (sisario.kelly@epa.gov) for Additional Information

Annual Data Metric Analysis

Ahhhh, Penalty Assessments 1984 Policy on Civil Penalties and Framework for Statute –Specific Approaches to Penalty Assessment EPA issued specific program civil penalty policy guidance to RCRA, CWA & CAA consistent with the 1984 policy Revised in June, 1993 Affirms that States shall endeavor, through there civil penalty assessment practices, to recoup at least the recovery of economic benefit. The guidance states that were state authority does not authorize recovery of economic benefit, EPA still expects states to make reasonable effort to calculate an attempt to recover it using the states own statutory criteria.

For our Region 4 states the environmental laws and relations adopted either require consideration of the benefit, allow consideration of economic benefit or do not list factors for consideration. While most of these laws list environment benefit as a factor, none discuss adequate penalty documentation. One of the precedential court cases in this area we have thank South Carolina. The Supreme Court heard Friends of Earth v. Laidlaw Environmental Services (2000). The court found that the state's failure to consider a covered benefit was evidence of non-diligent prosecution. This did not force the state to reject later can I benefit but love the citizen suit to move forward to "supplement"the states enforcement efforts.

Penalty and Financial Models The penalty and financial models are used to analyze the financial aspects of enforcement actions. Five models currently are available: BEN (5.6.0) - Calculates a violator's economic benefit of noncompliance from delaying or avoiding pollution control expenditures. Requires the date the violation occurred, the date of compliance, the costs of compliance and the year the costs were estimated, and the date the penalty will be paid.    ABEL (6.6.0) - Evaluates a corporation's or partnership's ability to afford compliance costs, cleanup costs or civil penalties. Requires

Penalty and Financial Models INDIPAY (3.6.0) - Evaluates an individual's ability to afford compliance costs, cleanup costs or civil penalties. Requires submissions of the INDIPAY Financial Data Request Forms and one to five years of an individual’s federal tax returns.   MUNIPAY (4.6.0) - Evaluates a municipality's or regional utility's ability to afford compliance costs, cleanup costs or civil penalties. Requires submissions of the MUNIPAY Financial Data Request Form.   PROJECT (6.6.0) - Calculates the real cost to a defendant of a proposed supplemental environmental project.

Oversight Inspections Objectives Agency to Agency Feedback Mechanism Identify Overall Strengths & Weaknesses in State Field Evaluations Identify Needs of Training & Equipment Some Programs have fairly well defined process for oversight inspections processes and feedback and others not so much……

Differential Oversight Seldom used Initiated by EPA only when things are not going so well