Guidance For Federal Field Citation Enforcement OSWER Directive 9610.14 April 9, 1992
- Regional Program Elements
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OSWER DIRECTIVE 9610.14
APRIL 9, 1992 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE MEMORANDUM SUBJECT: Guidance for Federal Field Citation Enforcement FROM: David W. Ziegele, Director Office of Underground Storage Tanks TO: Waste Management Division Directors, Regions I-III and V-IX Water Division Directors, Regions IV and X Regional Counsel, Regions I-X One year ago, on March 20, 1991, OUST issued the UST federal field citation guidance to the Regions. Today we issue the revised field citation guidance. During the past year we have been able to incorporate into this document the wisdom gained from actual field experience of issuing field citations in Regions VI, VIII, and X. In addition our office has received valuable input from the Regional UST attorneys, the Office of Enforcement, and the office of General Counsel. Drafts of this revised guidance have undergone close scrutiny by the Regions throughout the year. Attached is the revised UST federal field citation guidance. It includes short-form wordings of those violations for which field citations may be used, along with the suggested penalty amount for each violation. Regions are reminded that violations not a part of this list should not be cited with field citations. Also included with the guidance is a sample citation form. Regions must use this approved citation form or obtain approval for any Region-specific form from OUST, in writing. This revised UST federal field citation guidance has received formal concurrence from the Office of Enforcement and the office of General Counsel. Special thanks to these attorneys as well as to all other persons who participated in the extended process of improving this guidance. Please contact Jerry Parker of my staff (FTS 703 308-8884) with any questions or comments. Attachment cc: Regional Branch Chiefs Regional Program Managers Regional UST Attorneys Kathie A. Stein, OE Mimi Newton, OE Lisa K. Friedman, OGC Charles Openchowski, OGC OUST Management Team (w/o attachment) OUST Desk Officers (w/o attachment)
OSWER Directive 9610.14
GUIDANCE FOR FEDERAL FIELD CITATION ENFORCEMENT
I. Federal Enforcement
The Office of Underground Storage Tanks' (OUST) program approach is to build UST programs at the State level since States will be primarily responsible for the enforcement of UST regulations. Regions perform general compliance inspections at UST sites or take enforcement actions, generally in the place of or in conjunction with a State when the State lacks enforcement resources, and on Indian Lands or at Federal facilities. In these specific cases, the Regions must develop an enforcement strategy that addresses targeted violations while maximizing time and resources.
One enforcement option is the use of field citations, "traffic ticket"-styled citations issued on-site by inspectors, generally carrying a penalty. Field citations are currently being used by a number of environmental programs on the Federal, State, and local level, including UST programs. In the experience of many State and local UST enforcement programs, field citations are extremely useful in addressing many prevalent, clear-cut violations that are relatively easy to correct. Addressing these violations using established enforcement methods, such as formal administrative proceedings under 40 CFR Part 22, requires a greater commitment of staff time and resources, which may be difficult to obtain or which must compete with time and resources that staff directs toward releases or violations that are not appropriately addressed by the field citation program. When a citation program is properly designed, violators issued citations for clear-cut violations have greater incentive to correct problems and pay penalties than to contest. Thus, in appropriate circumstances, field citation enforcement is less resource intensive than traditional methods of UST enforcement. Resources are saved as citations are issued on the spot, and preparation of formal legal documents and procedures, such as administrative appeals, are minimized.
Use of field citations will not displace existing enforcement tools, such as warnings and orders, but will provide the inspector with an alternative enforcement tool. OUST believes that a field citation program is a viable and useful tool for Federal enforcement and several Regions have expressed interest in adopting field citation enforcement programs.
UST program staff and legal counsel from several Regions participated in a workgroup effort to develop procedures for Federal enforcement using field citations. This guidance document is a result of that effort. It attempts to serve the workgroup participants' interest in using field citations in a variety of circumstances and address concerns that an enforcement program be fairly and uniformly applied across Regions. Some key components of the field citation program are identical from Region to Region, such as the language of the citation. However, the flexibility provided in this guidance and the relationship between field citations and existing enforcement capabilities should provide considerable room for accommodating local needs. On this score, it is important to emphasize that field citation enforcement will not supplant existing enforcement options. Discretion to exercise existing options for warnings and other enforcement remains unchanged by the introduction of field citations, which should blend into Regional enforcement choices. Also, Regions will continue to select which violations or facilities need targeting, within the parameters of this guidance, based on local needs and subject to previously issued enforcement guidance. Finally, the availability of field citations should not diminish the Regions' efforts to assist States and localities in building UST enforcement programs.
Responsibilities of OUST
During the workgroup sessions, OUST agreed to provide the Regional offices with support in these specific areas:
- OUST has coordinated with the Office of General Counsel and the Office of Enforcement to develop a model citation format.
- OUST has developed this guidance, including a list of potential violations derived from the Federal UST regulations, to be addressed through the field citation program.
- OUST has made use of field citations consistent with the penalty policy (OSWER Directive 9610.12 "U.S. EPA Penalty Guidance for Violations of UST Regulations") and the Federal procedures manual (OSWER Directive 9610.11 "UST/LUST Enforcement Procedures Guidance Manual").
- OUST will assist in inspector training efforts. As the success of a field citation program depends upon the skills of inspectors, it is crucial that inspectors receive training in field citation enforcement techniques and specific guidance on when and how to use the citations. OUST has developed an inspector training manual to train Federal inspectors in issuing citations and performing related duties. OUST will help to tailor the manual to the specific needs of Regional programs, and will coordinate multi-Regional training efforts.
NOTE TO REGIONAL STAFF: Inspectors may also require training in the technical issues related to UST inspections; this training will need to be obtained prior to field citation training.
OSWER Directive 9610.14
II. Regional Program Elements
Guidance for Regions is presented in the following sections. The guidance should be considered in the context of the Region's overall enforcement strategy and priorities.
Selecting Appropriate Violations
The Regions described a range of problems they would potentially address using field citations. In order for field citations to be useful in a range of situations, the Regions need the ability to determine which violations of the Federal UST regulations to address using field citations. Since field citations in various forms have been used effectively in diverse jurisdictions, this guidance provides a framework for allowing Regions to address different violations within the field citation effort. The guidance is intended to ensure that each of the Regions develops its list of appropriate violations judiciously and implements its program reasonably by providing a list of violations appropriate for field citations and guidelines for selection among violations. Each Region should select violations to be cited from violations included in this list (see attached). Regions may not expand the list of violations that can be cited in a field citation. Consistency among Regions will be further assured by training.
The following generally are appropriate criteria for selecting the violations to be cited:
- Select violations which are clear-cut and easily verifiable.
- Select violations which are easily correctable.
- Do not select those violations which occur in environmentally sensitive areas, for example, at USTs above drinking water sources.
Determining which violations are appropriate for a field citation program requires considerable discretion. Experience shows that field citation programs work most effectively in achieving compliance if the violations are clear-cut and the inspectors exercise little discretion in citing the violations. Established field citation programs have found that easily identifiable violations (i.e., "either they have it or they don't") require the least amount of inspector judgment in the field, making it easier to provide clear guidance to inspectors and facilitate consistency among inspectors. On the other band, the Regions may believe that certain violations, while clear-cut, are very serious in terms of environmental harm threatened and require a more formal enforcement response. The list of violations appropriate for the field citation program, which accompanies this guidance, relieves the Regions of some of the burden of making these decisions. However, it is the responsibility of each Region to designate which of these violations will be appropriate candidates for its field citation program given specific Regional needs and resources.
In selecting a preferred approach, a Region may choose to target a certain prevalent or high priority violation or violations. This may be a good strategy for a Region to use if a State program lacks enforcement authority or regulations in a certain program area and the Region needs to fill a key gap in coverage or send an important message to violators. However, if a Region is to be enforcing in the place of the State the Region may find it advantageous to include all appropriate violations in the field citation enforcement program, as long as they meet the above-referenced criteria.
Guidance for when to Use Citations
This guidance establishes procedures for issuing citations, and describes some appropriate circumstances for inspectors to issue citations. Since the inspector is the one who must implement the program in the field, the Regions must clearly establish the extent of discretion allowed to inspectors in determining whether to issue field citations within general parameters set forth here. Field citations provide an additional enforcement too., and inspectors must be instructed in how to respond when violations appropriate for using field citations are found.
The proper use of field citations must be measured against the backdrop of the Regions' existing authority to issue warnings or pursue other existing enforcement measures for all violations of UST requirements. Although the primary objective of any enforcement program is to achieve compliance, formal enforcement mechanisms, such as those found in 40 CFR Part 22, normally will be more appropriate in particular circumstances. These circumstance include, among others, instances involving repeat violations, facilities located in environmentally sensitive areas or where payment of more significant penalty may be more effective in achieving EPA's enforcement goals. In the case of environmentally sensitive areas, for example, a Region should not use its field citation program for violations at facilities which may pose a serious environmental sites above drinking water sources. Inspectors should try to determine before they arrive at a particular facility whether they are dealing with an environmentally sensitive location, and therefore, whether they are dealing with and environmentally sensitive location, and therefore, whether a field citation should be used if certain violations which may pose a serious environmental threat are discovered. One way of doing this is to work closely with the State within which the violation exists, as it may have substantial knowledge and experience in delineating areas that are environmentally sensitive.
This guidance is intended to provide a framework for the inspector's discretionary use of the field citation enforcement option. therefore, the guidance is phrased in terms of the action an inspector would take in the typical case, but leaves room for exception if the circumstances in the inspector's judgment so warrant.
The following discussion describes the three basic enforcement options available to address violations of UST requirements:
There are several situations in which inspectors will typically issue citations:
Once a Region has selected its list of violations appropriate for the field citation program and trained inspectors in procedures for issuing field citations, inspectors may routinely issue field citations for all appropriate violations found at a facility. Each Region will have the discretion to place an upper limit on the number of violations that may be cited at one site. The threshold should be set below the point beyond which the number of violations, regardless of the nature of those violations, proves that a facility was seriously out of compliance and requires a more formal enforcement response. Even if the facility had only multiple recordkeeping violations, this approach could be taken in order to send a message to the regulated community. This number should also be near the point where a typical violator no longer has an incentive to correct the violations and pay the penalty instead of resisting compliance. At this point, a more formal enforcement response is likely to be more effective than use of field citations. As a general matter, a suggested threshold is between three and ten violations.
As States are the primary enforcers in the program, Regions usually will take enforcement actions only in the circumstances noted in the first paragraph of this guidance document. Therefore, it is likely that during joint inspections Regional inspectors will defer to the State program's regulations or authorities and not cite for violations that State inspectors cite. Generally, this will be the case where State sanctions are at least equivalent with Federal sanctions. On the other hand, there may be cases where a field citation would serve an important Federal enforcement objective, for example, sending a signal to the regulated community that we take interest in a specific kind of violation. In these cases, a field citation or other Federal enforcement measure might reinforce the State's message.
Field citations are generally most appropriate for addressing first-time violators; if the same violations are found again during a second inspection, Part 22 enforcement procedures should be initiated. Limiting the use of field citations to first-time violators makes sense if it appears to the inspector that the citation and penalty have not convinced a violator to bring a facility into compliance and to keep it in compliance. The inspector should be guided by the goal of the field citation program, which is to achieve rapid and resource-efficient compliance, rather than to penalize owners and operators for regulatory violations. When conducting inspections, it is critical that the inspector fully conduct the inspection and thoroughly complete the inspection report. If a field citation is not issued because the violations are above the thresholds for field citations, or the field citation settlement form is not returned, the Agency may choose to pursue standard enforcement based on the inspection report. therefore, while field citation may expedite the correction and penalty phases of enforcement, the quality and effort applied to the underlying inspection should not be abbreviated.
If an inspector discovers not only violations that are appropriate for the field citation program, but other violations as well, the inspector should address all of the violations at the site using more formal, existing enforcement methods. As used in this guidance, more formal enforcement typically refers to the procedures for issuing administrative complaints/compliance orders (including those assessing civil penalties) and conducting the administrative enforcement process governed by 40 CFR Part 22, the Consolidated Rules of Practice Governing the Administrative Assessment of Civil Penalties and the Revocation or Suspension of Permits ("Part 22 or "CROP"). CROP outlines the major steps in the administrative adjudication process and presents the various authorities and duties of Agency officials in the process. More formal enforcement methods may also include issuance of corrective action orders pursuant to 40 CFR Part 24 or judicial enforcement of the UST requirements.
In selecting those violations which are appropriate for field citations, the Regions will, in effect, also be identifying violations which, because of their potential for environmental harm or other characteristics (i.e., not clear-cut), should be addressed using the more formal, existing enforcement mechanisms. The more formal enforcement methods may also be the appropriate response in some circumstances where field citations would otherwise be appropriate (for example, if the total number of individual violations which are appropriate for a field citation surpasses the threshold for multiple violations or are repeated). Another case where a clear-cut violation might be addressed by more formal enforcement is the case of a clear-cut but not easily correctable violation (e.g., a tank was not purged before being removed). In these cases, a field citation may not serve the goal of encouraging compliance and might appear to treat the violator mildly compared to penalties applicable under the penalty policy. In general, the Regions will need to assess how to maximize resources while bringing as many facilities into compliance as possible.
The following criteria should be considered by inspectors when issuing citations in the field:
- Field citations generally are inappropriate in environmentally sensitive areas, for example, at USTs above drinking water sources.
- Field citations generally are inappropriate for anyone other than first time violators.
This guidance is phrased so that inspectors will know what action to take in the typical case. Inspectors are not bound to follow this guidance, however, when in the exercise of their enforcement discretion they determine that deviation from this guidance will result in more effective compliance or a more efficient use of enforcement resources. This approach is consistent with the guidance found in other EPA penalty policies and procedures.
Guidance for Penalty Amounts
In order to ensure that penalties assessed by different Regions for the same violations are consistent, standard suggested penalty amounts have been set by this guidance. Consistency among Regions is important to achieve fairness in the treatment of the regulated community in Regional penalty assessments. In the case of multiple violations, penalties should be totaled. In general, field citation programs set penalty amounts according to the severity of each violation or category of violations. Penalties should be assessed per facility rather than per tank.
The size of the penalties attached to violations is important to the success of a field citation program. Penalties that are relatively high (e.g., greater than $500 per violation) may discourage owners and operators from agreeing to settle. On the other hand, penalties need to be high enough to catch the attention of owners and operators. In general, the field citation program should operate optimally when the penalties are geared primarily to achieving compliance rather than to penalizing violators.
There is no predetermined cap on the cumulative amount of penalties assessed. However, there is a natural cap to the extent that each Region will be foregoing issuing field citations if the number of citable violations at a site exceeds a number fixed by the Region (see preceding section). the Region may want to consider the practical issues underlying a cap on the total cumulative amount of penalties that may be incurred by a single owner or operator, i.e., keeping the amount relatively low might encourage more settlements. This determination is a matter of judgment, and as the program is implemented, experience.
Form of the Citation
While each Region will have considerable discretion in tailoring its field citation program within the boundaries set forth in this guidance, the Regions must use the approved field citation or obtain approval for any Region-specific citation form from OUST in writing, after first having obtained approval of Regional Counsel. OUST will obtain concurrence for any proposed change from both the Office of General Counsel and the Office of Enforcement before authorizing such change. this approach will ensure that the field citations used are legally supportable and designed to accommodate the program elements described in this guidance. In additions, use of a standard citation form will guarantee some uniformity across Regions in the issuance of field citations.
The field citation developed by OUST is entitled "Expedited Enforcement Compliance Order and Settlement Agreement". The field citation represents the issuance of an order pursuant to RCRA §9006 to address violations listed in RCRA §9006(d), coupled with a short-form settlement agreement. Each Region, as it determines is appropriate, must delegate to individual inspectors the authority necessary to issues the citation form. The violator is ordered to correct the violation and given an opportunity to resolve the enforcement action expeditiously by agreeing to correct the violation and by settling for a lesser penalty amount than might be assessed according to the penalty policy if formal administrative or judicial proceedings were initiated. The lower penalty assessment reflects the time and expense saved by the Agency over that normally incurred in pursuing more formal enforcement methods; it also compromises the size of the fine EPA could potentially collect. If the violator does not accept the settlement agreement within the time provided in the field citation, the compliance order is automatically withdrawn. the Agency's policy is then to pursue other enforcement actions for the violations cited. The violator has only two options: accept the field citation or risk more formal enforcement proceedings. If a violator refuses to accept the terms of the field citation or if it is determined that a violator has not fully complied with the terms of a signed settlement agreement, follow-up enforcement should be initiated by EPA. Such follow-up enforcement should be more stringent than the field citation settlement terms in order to achieve compliance and ensure the integrity of the field citation program.
Subtitle I of RCRA provides for an opportunity for a hearing where an order is issued -- the hearing process is outlined in Part 22. As described in the foregoing section, the field citation has been designed as a compliance order and short-form settlement agreement.
The field citation compliance order is not an adjudicatory proceeding under 40 CFR Part 22. The violator has no right to a hearing under Part 22, since those procedures have not been invoked through issuance of a field citation. Violators who accept the terms of the settlement offer will have expressly waived their rights to a public hearing under § 9006 of RCRA. If the violator does not accept the settlement offer, the compliance order is withdrawn.
A Region initiating administrative actions against a violator should follow the Part 22 procedures if a violator forgoes the settlement offered through the field citation process. The Federal procedures guidance (OSWER Directive 9610.11 "UST/LUST Enforcement Procedures Guidance Manual") describes appropriate procedures in detail. Judicial enforcement may also be appropriate in certain instances, in which case the Region should follow appropriate referral procedures for judicial actions.
This guidance is intended to provide overall direction for establishing Regional field citation programs. As such, the role of the guidance is to enunciate the general principles that should underlie an appropriately designed field citation program; further details not contained in this guidance will be developed and transmitted to program staff through subsequent training or guidance.
OSWER Directive 9610.14
SELECTED VIOLATIONS OF FEDERAL UNDERGROUND STORAGE TANK REGULATIONS
- Subpart B--UST Systems: Design, Construction, Installation, and Notification
- Subpart C--General Operating Requirements
- Subpart D--Release Detection
- Subpart E--Release Reporting, Investigation, and Confirmation
- Subpart F--Release Response and Corrective Action
- Subpart G--Out-of-Service UST Systems and Closure
- Subpart H--Financial Responsibility
OSWER Directive 9610.14
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION _____, MAIN STREET, USA
EXPEDITED ENFORCEMENT COMPLIANCE ORDER AND SETTLEMENT AGREEMENT