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• J, APPENDIXA COMPLIANCEASSURANCEAGREEMENT

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# /e COMPLIANCE ASSURANCE AGREEMENT FINAL 'April'3, 1991

OREGON/EPA 

### FY 91 HAZARDOUS WASTE COMPLIANCE ASSURANCE AGREEMENT

. . The purpose of this agreement is to aid the state and federal government in achieving and**maint~ining** a high level of compliance withhazardo.us waste laws andregulations. As an authorized**st~te~** Oregon has primary responsibility for compliance and enforcement actions to ensUre compliance with RCRA through the state hazardous waste management laws. EPA retains its statutory enforcement authorities and responsibility for enforcement of those portions of the RCRA program for which the State has yet to be authorized. To improve the effectiveness of the state/federal working relationship, agreement on the following are formulated in this document:



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### H. Oversight Performance Criteria Oversight Procedures and Protocol Criteria for Direct Federal Action Advance Notification and Consultation

.Timely and Appropriate Enforcement Action

Inspection Procedures Reporting Effect



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.. A. OVersiqht Performanoe Criteria The following documents contain the compliance and enforcement performance expectations and criteria by which the EPA will evaluate state performance: 1. National Criteria for a Quality Hazardous Waste Management Program (June, 1986). 2. EPA Enforcement Response Policy (December, 1987). 3. RCRA/State Oversight Inspection Guide (December, 1989). 4. RCRA Program Evaluation Guides (OSWER, March, 1988). 5. U.S. EPA Operating Year Guidance (OYG) 6. State/EPA Agreement 7. DEQ Enforcement Rules (OAR Chapter 340, Division 12)
1COMPLIANCE ASSURANCE AGREEMENT FINAL April 3, 1991**8~** DEC Hazardous waste Enforcement**G~idelines** The following documents contain compliance and enforcement performance expectations which EPA will follow.when administering the federal program in Oregon:. Numbers 1 - 6 above, and**R~** civil Penalty Policy, October, 1990. When exercising its role as 6verslght agency EPA agrees to the following: 1. When the State requests EPA enforcement action and 'EPA agrees toprovide such action, EPA.responds witha timely and appropriate action, consistent with the EPA Enforcement Response Policy. 2. ·In cases where EPAreceives a formal request from DEQ for assistance and is unable to provide such assistance, EPA. will formallydocumentthereasons for not supportingthe',· state's request.

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• 3 • EPA adheres to the oversight procedures and protocol described in this document in conducting oversight responsibilities.



### . . 4. When the State requests enforcement, compliance and to provide such assistance, appropriate. B. OVer8iqbt Prooedure. and Protoool technical assistance for inspections"and EPA agrees EPA response is timely and

EPA and the State will adhere to the following: 1. The purposes of oversight inspections are several: to assess the quality and technical completeness of state inspections; to determine facility compliance with regulatory and permit requirements; to exchange information; and to increase the level ofproficiency of state and EPA inspectors through constructive feedback. DEQ andEPA inspectors willdiscuss thepurpose andgoals of each inspection prior to the inspection. Where there is a conflict between inspectors, it will be raised immediately to the 

### RCRA compliance section Chiefand the Hazardous Waste Permitting and Compliance Manager for resolution.

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### FINAL April 3, 1991 2. Criteria that will be used to select facilities for oversight inspections will be negotiatedjointly as part ofthe annual State/EPAagreementprocess andmayinclude factors such as: suspicion of violations, unresolved violations, nature'ofthe violations, status andtype of facility, status ofpermitactions, status ofgroundwater monitoring, status of**closure/post~closure,** suspicion of continuing or prior releases, and state inspection scheduling. 3. EPA will conduct oversight inspections on approximately ten percent of the evaluation inspections acheduLed through the SEA. Federal inspection work will be completed in concert with state personnel: However, oversightworkmayinclude independent field inspections at facilities recently inspected by state personnel, provided the state is given adequate advance notice in writing.

. EPA will schedule oversight inspections, consistent**wit~'** state inspection schedUles; according to procedures outlined in the Memorandum of Agreement.' oversight inspections, to the extent possible, will be evenly 'dispersed throughout the year and throughout the State to ensure a representative sampling of**compliance/enforcemen~** review

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.5. General categories for EPA's evaluation of compliance inspection'performance include: the level ofregulatory knowledge, ability to obtain and evaluate information, application of appropriate·regulatory requirements, appropriate determination of facility type, field documentation practices, procedural aspects of inspections, adequacy of technical reviews, postinspection documentation practices (inspection findings and report content), and elements of field presence (preparedness, effectiveness, etc.). EPA's review will concentrate on the content of inspection reports rather than the style.

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.• ! 6. EPA will ensure that oversight inspections are conducted byexperiencedknowledgeable, senior-levelinspectorsand that inspectors have reviewed files, plans, and permits and adequately familiarized themselves with the facility/handler operations prior to conducting the oversight inspection. EPA inspectors will be reasonably familiar with state compliance procedures, rules, protocols and processes prior to conducting the
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.' COMPLIANCE ASSURANCE AGREEMENT FINAL inspection. 7. In situations where EPA desires, with state concurrence, to use joint inspections with the ,state**as~** a training mechanism for EPA staff, these inspections shall be so defined as training inspections and will not be considered,oversight inspections. The EPA inspector's role in oversight inspections is to determine the adequacy of state, inspection practices, capability, 'and thoroughness, as well as to determine facility compliance. Specific arrangements, outside of this agreement, may only be made by mutual consent of EPA's Compliance Section Chief and CEQ's Hazardous Waste Permitting and**Complia~ce** Manager or at a higher management level. The state inspector will be the lead inspectorduringanoversightinspectionwhereinspectors from both**age~cies** are present. The EPA inspector will activelyparticipateonlyas necessaryto clarifyissuesr.' evaluate violative practices, document findings, and" otherwise complete the inspection. If the EPA and CEQ inspector disagree about a compliance matter, they will attempt to resolve it between themselves away from the presence of facility personnel. If they are unable to resolve the difference, they will raise it to their respectivemanagers forresolution. Asnecessarythe EPA and state inspector will then return to the facility to complete the inspection. In coordinating oversight inspections, the state and EPA participants are expected to exercise common courtesy, tact and professional behavior. Suggestions for inspection improvement will not be provided until after the inspection is completed. 9. After an oversight inspection, the state inspector will transmit to the EPA inspector a copy of the state's inspectionreportno laterthan 30 working days following the inspection, unless a different timeframe is agreed tobybothparties. Forinspections involving laboratory reports, a follow-up report containing the laboratory results will be provided when the results are completed. 10. No later than 20 working days after ,EPA receives the state inspector's report, EPA will prepare a written' evaluationreport stating its findings. The report will be submitted by the RCRA Compliance Section Chiefto the Hazardous Waste Compliance and permitting Manager and
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# • COMPLIANCE ASSURANCE AGREEMENT FINAL, April 3, 1991 relevant 'Regional Manager and a copy ot the EPA inspection report will be included. Exceptions to this timeframe may occur it agreed upon by both the RCRA COmpliance section Chief and the Hazardous Waste Compliance' :and Permitting Manager or higher level management. 'If necessary, a follow-up meeting may be calledby eitherparty to discuss the substance ofEPA's findings.' The evaluation reports will be used as one of 

### the tools to assess the, quality of, and identify and**correc~** problemswith, thecomplianceinspection**progr~.** 11. The state and EPA may jointly issue administrative orders, either consent orders or orders**~at** may be appealed, when both the state and EPA agree that this will be the most effective use of agency resources or 'authorities.' In such cases the State will usually issue

anyapplicablepenaltiesbasedonthe state's enforcement penalty policy. C. Criteria 

### tor Direot**~.deral** Aotion "" 

# .' The following describes the situations under which direct federal action may occur:

, 1., The lack of timely and/or**~ppropriate** state enforcement as defined in the EPA**~nforcement** Response Policy or DEQ Hazardous Waste Enforcement Policy if not otherwise negotiated. 2. A case where the State has issued a penalty below the minimumlevelprovidedinDEQHazardousWasteEnforcement Policy without acceptable justification for such a deviation. Acceptable justification will be determined by the RCRA Compliance Chief or higher level management atEPAbut is subjectto challenge anddiscussionbyDEQ. 3. Arequest from the state for EPA enforcement action. 4. Where there are violations of an EPA order or,consent decree. 5.

6. In consultation with the state, where there are violations of national significance or where interstate issues are involved. Violations ofHSWAandfederalrulespromulgatedpursuant to HSWA, for**~hich** the state is not authorized.

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# • COMPLIANCE ASSURANCE AGREEMENT FINAL April 3, 1991 D. Advance Hotification and Conaultation Apolicy of "no surprises" will be applied to all aspects of the compliance and enforcement program covering inspections, civil entorcement activities, press releases and public information. To guarantee ample advance notification, the"following will be done:



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4. Allcoordination, notificationandreportingrequirements stated in the tinal authorization MOA will be followed by both the State and EPA. Whenever possible the State and EPA shall use regular compliancemeetings to consultwitheachotherandverify**c~mpliance** and enforcement circumstances.

. These meetings will have written agendas (developedwith input fromboththe State and EPA) availableto the State and EPA ten working days in advance of the scheduled meeting date." The results of these meetings will be documented in writing and available to the State and EPA" 20 working daysfollowing themeeting. EPAandthe State will alternately take the lead in preparing agendas and meeting documentation. The meetings will be held alternately at State and EPA offices• EPA shall notify the State' prior to taking an overfile action. A special m"eeting will be conducted between senior management of both agencies when a case is being considered for overfile and prior to any formal EPA action being drafted. Except in cases of imminent or substantial endangerment to health and/or the environment, suchnotice andmeeting shall occurat least 15 working days in advance. This notification will be provided to the State Hazardous and SolidWaste Division Administrator. EPA should also provide informal**noti~e** "to the involved state staff as well. During the 15 day period, EPA and the State will consult ingoodfaithregarding anappropriateenforcementaction in lieu ofthe potential EPA overfile action. If at the end of 15 working days EPA is satisfied with steps taken by

## the State toward appropriate enforcement action, EPA will" not take enforcement acti6n• WhenEPAorthe Statehas compliance informationrelevant to a pending or issued enforcement action on a facility being inspected or permitted under the State/EPA Agreement (e.g. lab data, consultantreports, compliance
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# • COMPLIANCE ASSURANCE AGREEMENT FINAL April 3, 1991 followups, manifestdiscrepancyreports, etc.), theywill share that information as necessary in a timely and responsible manner as specified in the MOA. 5. "The- State and EPA will seek to resolve differences in interpretation of regulations,: technical jUdgement or program goals and priorities as they arise. If differences cannot be resolved at staff level within 30 working days from the pointwhen written notification is first received by DEQ from EPA, the issue shall be brought to the attention of**~e** EPA Compliance Section Chief and the state Hazardous Waste Compliance and PermittingManager for negotiation. These parties shall negotiate a resolution or agree to elevate the issue to the EPA Waste Management Branch Chief and the Hazardous and Solid Waste Division Administrator.

. All resolutions/decisions shall be documented in writing and followed by both the State and EPA. Disputes will be resolve following procedures .in the MOA. 

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.'.: Upon advance request state and federal compliance files shall be open for review at any time to appropriate compliance personnel with consideration for enforcement and/or confidential business information restrictions. Staff should seek to minimize disruption. Requests should bemade throughthe DEQHazardous WasteFile Clerk or appropriate**staff~** Professional courtesy should be exercisedby all staff. No access to files withoutprior request and assistance will be allowed by either agency. 7. Prior to any press releases by either the State or EPA related to joint enforcement effort or EPA overfile actions, advance consultationwith the otherparty shall occur. Each party will be apprised of what 

### is planned to be said in thepress release andgiventhe opportunity to participate in a combined press release. Where possible, combined press releases are encouraged. Coordination and prior notice on press releases is the responsibilityoftheagencypUblic informationofficers. At leastthree days noticewill be givenpriorto a press release. B. Timely and Appropriate Bnforoement Aotion It is understood that the State will ad4ress all violations of the Hazardous Waste Regulations withinthe state's jurisdictionunless negot:iated otherwise with EPA. The State '!ogrees to take timely and appropriate enforcement action consistent with the criteria
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# • Generally HPVs in Oregon are the same as federal HPVs., as defined in the EPA Revised. Enforcement Response Policy (1987). The violations which DEQ defines as Class I violations where civil penalties are to be assessed include what EPA defines as a high priorityviolator in its enforcementresponsepolicy. Forpurposes of clarification of which violators in oregon will receive the highest priority for enforcement, HPVs in Oregon are defined'as. violators of the state's hazardous waste laws or regulations who:' through flagrantorwilitul action orconductviolatethe statute or regulations; knowingly dispose of hazardous waste into the environment, or who cause 

### a release of hazardous waste into the environmentwhich represents an endangerment to pUblic health or the environment due to the quantity, location.or toxicity of the hazardous waste; 3. are recalcitrant in that the violator has received a previous formal enforcement action andhas either failed to correct the violations or has later committed violations similar to those identified in a past formal enforcement action; 4. violates ahazardouswastepermitconditionororderthat is equivalent to a Class I violation listed in DEQ's enforcement policies; or

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### .. 5. is a treatment, storage and disposal facility (TSDF), large· quantity generator (LQG), or small quantity generator (SQG) who SUbstantially deviates from the hazardous waste regulations.**J'.~"'.** 

# e/ The state shall have the enfor,cement lead for any violation of state program requirements. The state agrees that EPA may take independent enforcement action if the state has not acted in a 8

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, • I 1 ". .J J COMPLIANCE ASSURANCE AGREEMENT FINAL April 3, 1991 ·timely and appropriate**manne~.** An EPA overtile is not presumed to be a routine matter•. Priorto EPAinitiating any specific overfile enforcement action the State and EPA agree to follow procedures described in section Dabove.**~.** 

### In.pectioD Procedure. The ·following summarizes EPA expectations for RCRA inspection repor.ts unless otherwise agreed to: Acomplete inspection report should consist of all applicable DEQ checklists properly and completely filled out, photographs, supportingdocumentation, anda narrativereportofthe inspection.
The basis for checklist answers should be identified. Checklists with unsupported conclusions (unless the ·conclusions are selfevident), such as N/A, or yes or no response should not be made without some explanation of the basis, either on .the checklist or.· in the narrative report (e.g., based on a review of identified'· manifests, or as represented by the company president). The following is a list ofthe information that should be included in riarrative reports. This list is not intendedto describe every**situ~tion** or all elements ever needed for a report. Rather, it is intended as general guidance in inspection report writing: 1. A heading which includes the facility name and site address" the facility EPA ID number, the date of inspection, the date of the report and type of inspection (complaint, sampling inspection, partial inspection, comprehensive monitoring and evaluation, etc.). 2. A statement of authority for, and purpose of, the inspection.

, 3. General facility information and background such as compliance history, status of notification, property ownership and permitting requirements (note: permitting requirements should be for all applicable environmental permitting needs such as NPDES). Adiscussion on facility operations and processes, all hazardous and solid waste streams (inclUding their origin, managementpractices and disposition). Diagrams and photographs.are particularly useful when justifying enforcement actions.
9COMPLIANCE ASSURANCE AGREEMENT

.1 FINAL •.. April 3, 1991
5. A summary of plan reviews and discussions of their operation in relationship with the plan procedures. 6. Matters of. environmental and regulatory siqnificance should be**desc~ibed** in detail in the narrative report. 7. The·narrative should include conclusions or a summary whichidentifies apparentorpossible'violations andtype and class of each violation. 8. If. items of interest were not fully inspected or evaluated, this should be.reported. Checklist items are inadvertentlymissed on occasion. However, if it is not reported, the reader. may be misled, and believe·that. those items were check and no violations found. 

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' G. Reportinq The State agrees to classify and report violators, including high priority violators, in accordance with the DEQ Hazardous Waste Enforcement Policy unless otherwise agreed to by both agencies. All state inspection and enforcement activity for Which the state**desi~~s** to receive "credit" is to be reported by the State to EPA using the appropriate CMEL form (or RCRIS forms when developed). Information is to be submitted by the 20th of every month and will include all relevant.inspectionand enforcement activity completed the previous month. DEQ is responsible for the accuracy of the inspection and enforcement information submitted to EPA. EPAis responsible for the accuracy ofdata entered and maintained in the· EPA data base. The state and EPA viII not receive any credit for any compliance or enforcement activity that is not reported accurately to the EPA data syat... EPA will provide timely training to DEQ staff on the proper way to complete forms and use the data in the national system.

. The State will transmit to EPA within 20 working days of the inspection, orwithinthe alternately agreedupontimeframe, copies ofinspectionreports andany accompanying informal actions for all land disposal facilities, federal facilities and for facilities receiving off-s.ite CERCLA wastes listed in the

.SEA workplan. Similarly, EPA will transmit to the State within 20 working days ofthe inspection, orwithinthe alternately agreed-upontimeframe, copies of inspection reports for federal, state and local facilities or facilities receiving off-site CERCLA waste. In addition, upon issuance the State.will provide EPA with copies of all state issued administrative orders and penalties and EPA will provide the State with copies of all EPA issued administrative 10t- , 

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.. COMPLIANCE ASSURANCE AGREEMENT FINAL April 3, 1991 orders and penalties. The appropriate point of contact for both agencies is the RCRA Compliance section Chief and the Hazardous Waste Permitting and Compliance Manager. 

### H. Bttec1; Nothing in this agreement shall be construed to.constitute a valid defense by regulated parties in violation 

### ot any state or federal environmental statute, regulation or,permit.

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## ... Fred Hansen, Director Oregon Department of Environmental Quality



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Dana A. Rasmussen Regional Administrator

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