Monitoring Federal Facility Compliance

Overview

EPA monitors activities related to environmental compliance at federal facilities to determine whether federal facilities, like private entities, comply with applicable environmental laws administered by EPA. Compliance monitoring activities also allow EPA to identify ways the agency can assist federal facilities in achieving and maintaining compliance. The overall goal of the program is to achieve and maintain high rates of compliance at federal facilities.

EPA has established several objectives to meet this goal.

Review the compliance status of federal facilities to identify potential violations
Establish a strong enforcement presence in cooperation with state and tribal environmental agencies at all federal agencies that have facilities or lands with a potential for environmental impact
Collect evidence to support enforcement actions for identified violations
Develop an understanding of compliance patterns within federal agencies to accomplish the following:
- Assist in targeting inspection activities;
- Establish compliance assistance and enforcement priorities;
- Evaluate program strategies;
- Communicate information to the public
- Prevent recurring violations

Most compliance programs rely on facility inspections as the primary tool to determine compliance. Inspections include a review of compliance with statutory and regulatory requirements. These requirements include that federal facilities conduct specific activities, maintain certain records, and provide information to EPA and the states. Facility record inspections also help determine compliance rates under various environmental statutes administered by EPA.

Access to Federal Facilities

Access to “Classified” National Security Sites

Certain classified facilities, including those with military, intelligence, nuclear-related, and law enforcement functions, may have special security or access requirements necessitated by the facility’s mission. It is EPA’s policy to meet these special requirements to the maximum extent possible, because these requirements generally do not conflict with the goals of EPA’s environmental compliance responsibilities. Where necessary, EPA or state inspectors must obtain the appropriate clearances for access to classified national security information, facilities, or restricted data at federal facilities. All information obtained from the inspection deemed classified will be maintained in accordance with the originating agency’s requirements.

EPA has programs for personnel and document security clearance, as well as for the protection of confidential business information. Protection of information from release has not adversely affected EPA’s mission to date. Further, EPA staff with these responsibilities can assist inspection and compliance personnel in meeting these special access or security requirements related to the facility’s classified status. EPA personnel in need of security clearances for inspections or other compliance monitoring activities should contact the Security Management Division at EPA headquarters to obtain information on how to obtain necessary security clearances. State personnel should first contact the federal agency. If state personnel encounter problems or experience inordinate delays, they should ask their supervisor or counsel’s office for assistance.

Access to Non-Classified Sites

For three decades, EPA has advised its inspectors that facilities may not place any unreasonable limitation on the agency’s ability to access and inspect a facility. Federal facilities not formally designated as classified for purposes of national security may not restrict EPA’s access to conduct an inspection.

EPA has provided extensive guidance on the proper issuance and use of EPA credentials utilized by EPA personnel and others acting on behalf of EPA. EPA enforcement credentials serve to verify the inspectors’ identity, qualifications, training, and authority to conduct the inspection. Upon presentation of EPA credentials, the facility should allow entry and not place conditions either upon the entry, or on the scope of the inspection. Inspectors are not required to provide personal information, such as driver’s license, home address, or social security information to gain entry. EPA inspectors should not agree to any conditions that restrict or impede the manner or extent of the inspection, including signing any waivers or releases of liability. (See Clarification of CERCLA Entry Policy.)

Resolving Efforts to Deny Access

Generally, once the facility understands the broad scope of EPA’s inspection authorities, and the facility or area to be inspected is not classified, EPA inspectors may then typically enter the facility. The brochure "Federal Facilities Inspections: A guide to EPA's access and inspection authorities" provides information for federal facilities to use to resolve access issues. Inspectors should immediately seek advice from their regional counsel’s office, if it appears that access issues may not be easily resolved with the federal facility.

State/Tribal Roles In Compliance Monitoring

States are actively involved in monitoring federal facility compliance. Under many of the environmental laws administered by EPA, states have the primary responsibility for determining a facility’s environmental compliance. States are interested in ensuring that federal facilities are complying with both federal and state environmental requirements. A state may conduct monitoring activities on its own or may work jointly with EPA to undertake those activities.

Tribal governments also may be involved in compliance monitoring since the EPA may treat tribes as a state for delegation and authorization of environmental laws EPA administers. Federal facility personnel should be prepared to work with EPA, state, and tribal representatives. When a state or tribe is delegated the responsibility or is authorized to implement a federal environmental program, it will possess the same permitting, inspection, recordkeeping, and reporting enforcement authorities as EPA.

States meet with EPA regional staff on a regular basis to share compliance information and to coordinate inspections. EPA Regions meet with state representatives to identify and discuss patterns of noncompliance at federal facilities, including any violations or compliance patterns identified through EPA or state inspections. States generally provide EPA Regions with compliance information (e.g., inspection reports, enforcement settlements) on a regular basis.

Although most statutes allow limited Presidential exemptions, Federal agencies generally must comply with all Federal environmental statutes and regulations plus all applicable State, Tribal, and local requirements. Federal facility managers, therefore, must incorporate State, Tribal, and local environmental requirements into their environmental compliance and auditing programs.

When State, Tribal, and local regulations are more stringent than EPA requirements, Federal agencies are generally required to comply with the more stringent requirements. To ensure compliance with more stringent requirements, Federal facilities need to consult and cooperate with State, Tribal, and local governments. Executive Order (E.O.) 12088, Federal Compliance with Pollution Control Standards, requires that Federal agencies develop and maintain plans for controlling environmental pollution and that Federal agencies fully cooperate with EPA, State, interstate, and local agencies to prevent, control, and abate environmental pollution.

Delegated and Authorized Defined

Delegated

Generally means allowing a State/Tribe to apply Federal law standing in the place of the Federal government. Under delegation, a State may implement the Federal law in precisely the same way, for example, as EPA would implement that particular Federal law.

Authorized

Generally, the definition of “authorized” means allowing a State to apply its own State laws in lieu of the Federal law. Under authorization, State/Tribal laws must meet the applicable statute requirements for authorization. Under most statutes, State/Tribal laws must be as stringent as the Federal law. Thus, each duly authorized State/Tribe may administer programs that vary somewhat from State to State.

Amendments to three environmental statutes allow for EPA authorization of Tribal programs include the Safe Drinking Water Act, Clean Water Act, and Clean Air Act. In addition, EPA has discretion to allow for Tribal programs under other environmental laws (e.g., the Toxic Substances Control Act). The EPA Policy for the Administration of Environmental Programs on Indian Reservations recognizes the government-to-government relationship between appropriate party for regulating Tribal environments where they can demonstrate the authority and capability to do so.

Self-Monitoring Through Environmental Compliance and Management Auditing

EPA defines an environmental compliance audit as a systematic, documented, periodic, and objective review of facility operations and practices related to meeting environmental compliance and environmental responsibilities. Audits are a critical component of an agency’s ongoing environmental management program because they:

Verify compliance with applicable statutes, regulations, and Executive Orders;
Evaluate the effectiveness of environmental management systems already in place;
Identify opportunities for pollution prevention; and
Identify unregulated potential risk at a facility

EPA policies encourage all federal agencies to adopt auditing programs to achieve and maintain compliance. These auditing programs help federal agencies to ensure the adequacy of their own internal systems designed to achieve, maintain, and monitor compliance with environmental laws and regulations. The structure of audit programs should help identify environmental problems promptly and have processes in place to expeditiously develop schedules for corrective action. FedCenter.gov provides technical assistance materials to help federal agencies design and initiate audit programs. The EPA recommends the use of environmental management systems that allow an organization to manage its environmental and health safety systematically and in an efficient and effective manner.

The following sections discuss EPA’s audit policy, guidance documents, and the procedures for conducting an audit.

EPA Audit Policy

The EPA Audit Policy formally titled “Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations,” safeguards human health and the environment by providing several major incentives for federal regulated entities to voluntarily come into compliance with federal environmental laws and regulations. These incentives include a penalty incentive for self-monitoring, disclosure, and correction. The goal of the audit policy is to encourage regulated entities to voluntarily discover, disclose, and correct violations of environmental requirements.

Summary of Incentives

Significant penalty reductions - Civil penalties under the environmental laws generally have two components, an amount assessed based upon the severity or “gravity” of the violation, and the amount of economic benefit a violator received from failing to comply with the law.
- No gravity-based penalties assessed if federal agencies meet all nine of the Policy’s conditions. EPA retains its discretion to collect any economic benefit resulting from noncompliance.
- EPA may reduce gravity-based penalties by 75% where the disclosing entity meets all of the Policy’s conditions except detection of the violation through a systematic discovery process.
EPA may waive a recommendation for criminal prosecution - For entities that disclose criminal violations, as long as all of the applicable conditions under the policy are met, EPA may waive recommending the agency for criminal prosecution. “Systematic discovery” is not a requirement for eligibility for this incentive, although the entity must be acting in good faith and adopt a systematic approach to preventing recurring violations. Refer to the audit policy for a complete discussion of issues relating to disclosure of criminal violations.
EPA would not make routine requests for audit reports - EPA reaffirms its Environmental Auditing Policy Statement, in effect since 1986, to refrain from routine requests for audit reports. That is, EPA has not and will not routinely request copies of audit reports to trigger enforcement investigations.

Conditions Federal Agencies Must Meet for EPA Not to Seek (Or to Reduce) Gravity-Based Penalties:

Voluntary discovery
Prompt voluntary disclosure in writing to EPA within 21 days of discovery
Independent discovery and disclosure
Correction and remediation within 60 days of discovery
Prevent recurrence of the violation
No repeat violations
Violations resulting in harm or endangerment, or of enforcement documents are excluded
Cooperation
Systematic discovery of the violation through an environmental audit or the implementation of a compliance management system

Guidance Documents and General Procedures for Conducting an Audit

EPA has issued two guidance documents to assist federal agencies in developing effective auditing programs.

Environmental Audit Program Design Guidelines for Federal Agencies or the Design Guidelines (short title), is a revised version that focuses on the development of strong environmental auditing programs.
Generic Protocol for Conducting Environmental Audits of Federal Facilities or Generic Protocol (short title), is its companion document.

Design Guidelines

The purpose of the Design Guidelines is to provide information, criteria, and direction to federal agencies that are designing audit programs. The Design Guidelines addresses concerns and considerations unique to federal agencies, including organizational structures, chain of command issues, and planning and budgeting systems. Although each federal agency conducts its audits differently, EPA’s Design Guidelines states that federal agencies should examine the following general issues before instituting or upgrading an audit program:

Identify the program’s needs and objectives;
Develop an audit framework that addresses scope, protocol development, audit team structure, and frequency of audits;
Integrate the audits within an environmental management program; Develop program organization and funding;
Report the results of the audits; Assign priorities to audit findings;
Institute an audit-finding tracking system;
Provide follow-up audits; and
Evaluate the audit program in terms of technical performance, program component integrity, and environmental compliance results.

Generic Protocol

The development of the Generic Protocol (the companion volume to Design Guidelines), lend support to federal agencies in their efforts to conduct environmental audits and environmental management assessments at their facilities. It consists of a set of narrative instructions, source lists, and checklists of federal environmental regulations for environmental issues encountered at federal facilities.

The Generic Protocol focuses on critical areas of an environmental audit including air, hazardous waste, underground storage tanks, emergency planning and community right-to-know, cultural resources, and environmental management systems. The protocol provides detailed systematic instructions for conducting an audit that agencies may modify to meet the individual needs and operations of their facilities.

The three phases of the generic audit protocol for federal facilities include:

Phase 1 -Auditing for Compliance: Provides for a review of facility conditions with regard to specific media areas (e.g., air, water, and solid and hazardous waste) with a focus on compliance with federal, state and local environmental requirements.
Phase 2 - Assessing Management Effectiveness of Specific Environmental Programs: Examines crosscutting issues and approaches, such as pollution prevention and eight different organizational disciplines, that help foster success in the technical management areas outlined in Phase 1.
Phase 3 - Auditing for Management Effectiveness of All Environmental Programs at a Facility Site: Examines the facility’s management of all environmental programs to help establish compliance as the “starting point” rather than the “goal” of environmental performance.

Environmental Management Systems

Since 1993, the President of the United States has ordered federal agency heads to pursue their missions in a manner that integrated environmental considerations into day-to-day decision making, as well as long term planning processes. By October 1996, EPA had issued a Federal Register notice requiring federal agencies to commit in writing and to actually develop and implement some type of systematic environmental management system within their agencies.

Although there are many models and standards for environmental management systems (EMS), the one most commonly used is the International Organization for Standardization (ISO) 14001. This standard is used worldwide and is the model used by most of the federal agencies.