Expedited Compliance & Enforcement
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.
Statement of Policy
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 that 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 that 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 that 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 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 ADEQ’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.
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
- 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 and Inspection branch manager in concurrence with the Hazardous Waste division chief, Legal Division, associate 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 ADEQ review.
To provide an incentive to expedite settlement of CAOs, the respondent will be given a 50% discount on the proposed civil penalty if the CAO is signed and returned for execution within a designated period, usually within 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 that might occur because of 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 who 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 program shall remain in effect.
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 secondary and minor violations were automatically incorporated into formal enforcement proceedings for serious or significant noncompliance.
The time and effort spent in determining, documenting, reporting, tracking, and eventually enforcing compliance with these secondary and minor violations in a formal enforcement setting are better used by focusing our resources on identifying and enforcing serious instances of noncompliance that 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 that 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 that are heard administratively, the number of issues before the administrative hearing officer should be significantly reduced because 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