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I. Statement of Issue
In order to maximize the efficiency and effectiveness of the hazardous
waste compliance monitoring and enforcement program, certain procedural modifications
must be made which will promote the most productive use of the program's limited
resources. The procedural changes include focusing inspection scope, simplifying
inspection reports, integrating reports and enforcement documents, and offering "expedited
settlements."
II. Statement of Policy
Compliance Monitoring
Compliance Evaluation Inspections (CEIs) will focus on identifying
the most significant violations, however, all violations detected will be addressed.
The inspection objective will focus on finding circumstances which may cause
serious harm to the environment or human health because of the mismanagement
of hazardous waste. Upon identification of such circumstances, the inspector
will assess and document the potential violations involved. The inspection will
not be driven by checklists; however, checklists may be used as inspection tools.
Conditions or circumstances which are judged not to pose a serious threat to
human health or the environment will be assessed, included in the inspection
findings, and the inspector will advise facility operators to correct any minor
deficiencies or secondary violations which may be noted, either at the time
of the inspection or through follow up correspondence (i.e. compliance assistance
and informal enforcement.) A full-scale detailed inspection, inclusive of all
aspects of hazardous waste management activities, may be conducted when circumstances
warrant such approach.
Inspection reports will be completed, submitted, and approved
within thirty (30) days of the inspection event unless an alternate schedule
is approved by the Inspector Supervisor. The inspection report will consist
of a narrative report which identifies the person, place, time and date, participants,
and any instances of noncompliance determined during the CEI. All instances of significant
noncompliance will be documented sufficiently to support any enforcement action
encompassed within the Department's authority. Such documentation may be included
by referencing file documents not a part of the report. Any checklists produced
during a CEI will be maintained in ADEQ's files, but will not be attached to
the report. The inspection report will be consistent with a format approved
by the Division Chief and will be designed to be integrated with
other enforcement documents such as consent administrative orders (CAO) and
notices of violation. Minor violations, if immediately corrected, will
only be documented in the inspector's field log book.
Enforcement
Both formal and informal enforcement actions may be taken as
a result of the same inspection, if applicable. Significant or serious noncompliance
will result in a formal enforcement action, and secondary and minor violations
will result in an informal enforcement action, even if both violation types
are detected as a result of a single inspection. Upon approval of the CEI report,
the Inspector will:
- Send copies of the CEI report and related correspondence to facilities and
- Submit a copy of the CEI report to the Enforcement Coordinator if significant violations are determined.
The Enforcement staff will review the recommendation, in consultation
with the Enforcement & Inspection Branch Manager, calculate an appropriate penalty pursuant
to Arkansas Pollution Control and Ecology Commission
Regulation 7, and draft a CAO and submit it for internal
concurrence. Upon approval, the CAO will be proposed to the Respondent.
The CAO will be consistent with a format approved by the Enforcement &
Inspection Branch Manager in concurrence with the Hazardous Waste Division Chief, Legal
Division, Deputy Director, and Director. In most cases, the CAO will be fairly
generic in format and will incorporate the CEI report by reference. Requirements
to correct noncompliance will usually be performance based unless specific corrective
actions are warranted. The CAO respondents will usually be required to submit
a report on their activities taken to return to compliance which will be subject
to Department review.
To provide an incentive to expedite settlement of CAOs, the
Respondent will be given a fifty percent (50%) discount on the proposed civil
penalty if the CAO is signed and returned for execution within a designated
period, usually within twenty (20) days of receipt of the "expedited settlement"
offer. Only minor negotiations for settlement will be entertained during this
period. Negotiations for settlement during this period will not include discussions
on further penalty reduction or the validity of compliance determinations. Because
the rationale for granting this extreme relief on the amount of civil penalty
is based on the benefits achieved by a rapid reduction of any possible risks
to human health or the environment which might occur due to continuing violations,
an extension of the above time frame, during which eligibility for the 50% penalty
reduction is maintained, is not appropriate. The opportunity for "expedited
settlement" and 50% penalty reduction will not be offered to violators
which exhibit criminal behavior, extreme negligence, patterns of habitual noncompliance,
uncooperativeness, or recalcitrance. The Director shall have the sole discretion
in making eligibility determinations.
If any CAO is not signed and returned during the "expedited
settlement" period, the offer for 50% penalty reduction will expire and,
upon concurrence with the Director, a Notice of Violation (NOV) will be issued.
Traditional negotiations for settlement may continue during the period prior
to the NOV hearing, however, penalty reductions at this point will only be considered
based on cause.
All other procedures of the Hazardous Waste Division's compliance
monitoring and enforcement programs shall remain in effect.
III. Statement of Basis
Under our previous approach, inspectors usually found significant or serious
noncompliance quickly with minimal effort, then expended a great deal of time and
effort accumulating information on secondary and minor violations that have less
impact on human health or the environment than does significant or serious noncompliance.
That effort carried over into enforcement because, due to the presence of serious
or significant noncompliance, when formal enforcement proceedings were taken, secondary
and minor violations were automatically incorporated into that action.
The time and effort "sink" created by determining, documenting, reporting,
tracking, and, eventually, enforcing compliance with these secondary and minor violations
in a formal enforcement setting are better utilized by focusing our resources on
identifying and enforcing serious instances of noncompliance which significantly
impact human health and the environment. This allows enforcement staff the opportunity
to widen the coverage of their compliance monitoring activities and obtain a larger
cross-sectional view of compliance, as well as, freeing up some of their time to
supplement other enforcement functions that our present workload/resource ratio
do not allow us to conduct efficiently. Violations of lesser significance can be
dealt with at the appropriate level of enforcement response, thus making better
utilization of resources.
The increased scope will ultimately allow for identification and correction of
a larger number of serious noncompliant situations and improve overall protection
of the environment. It is anticipated that the highly visible and focused compliance
monitoring and enforcement program set out herein will lead to an increased awareness
among the regulated community that compliance is a necessary component to managing
well run businesses and will make voluntary efforts to comply a priority for them.
The projected outcome is an overall increase in compliance rates which translates
into increased environmental protection.
This "focused" approach to compliance monitoring will be less intrusive
and have procedures for dealing with less serious violations at the appropriate
levels of enforcement. These levels of enforcement include compliance assistance
and/or informal enforcement.
The offers for "expedited settlement" will allow concentration of resources
on the serious issues which have the highest impact on human health and the environment,
while retaining the elements of an effective enforcement program. Respondents will
be given additional credit for cooperativeness and risk reduction pursuant to Arkansas
Pollution Control and Ecology Commission
Regulation 7 via a penalty reduction for expediently resolving
outstanding enforcement issues.
In those cases where formal enforcement is warranted but that do not settle cooperatively,
either by the "expedited settlement" process or by the traditional negotiation
process, and which are heard administratively, the number of issues before the administrative
hearing officer should be significantly reduced, as many of the secondary and minor
noncompliance issues will likely be resolved at a lower level of enforcement.
Issued: 3/18/96 Revision #: 1 Revision Date: TBD
