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

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

5. National Enforcement Expectations for Regions
For the FY 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, 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”.

6. 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.

7. CAA Stationary Source Compliance Monitoring Strategy
Revised on July 14, 2014
For your reading enjoyment-
09/documents/cmspolicy.pdf

8. 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

9. 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.

10. 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. 

11. 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 CMS includes special conditions and considerations for states and regions interested in substituting these activities for traditional comprehensive on-site inspections.

12. 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

13. 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)

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

15. 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.

16. 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

17. 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

18. Latest SRF Findings in Air - States

19. Latest SRF Findings in Air - Locals

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

21. 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)

22. 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 for Additional Information

23. Annual Data Metric Analysis

24. 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.

25. 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.

26. 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

27. 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.

28. 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……

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