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APPENDIX A

COMPLIANCE ASSURANCE AGREEMENT

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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

with hazardo.us waste laws and regulations. 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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G.

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)

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COMPLIANCE ASSURANCE AGREEMENT

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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 to provide such action, EPA. responds with a timely

and appropriate action, consistent with the EPA

Enforcement Response Policy.

2. ·In cases where EPA receives a formal request from DEQ for

assistance and is unable to provide such assistance, EPA.

will formally document the reasons for not supporting the',·

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 of proficiency of

state and EPA inspectors through constructive feedback.

DEQ and EPA inspectors will discuss the purpose and goals

of each inspection prior to the inspection. Where there

is a conflict between inspectors, it will be raised

immediately to the RCRA compliance section Chief and the

Hazardous Waste Permitting and Compliance Manager for

resolution.

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COMPLIANCE ASSURANCE AGREEMENT

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April 3, 1991

2. Criteria that will be used to select facilities for

oversight inspections will be negotiated jointly as part

of the annual State/EPA agreement process and may include

factors such as: suspicion of violations, unresolved

violations, nature 'of the violations, status and type of

facility, status of permit actions, status of groundwater

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,

oversight work may include 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.

.5. General categories for EPA's evaluation of compliance

inspection' performance include: the level of regulatory

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

by experienced knowledgeable, senior-level inspectors and

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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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

inspector during an oversight inspection where inspectors

from both age~cies are present. The EPA inspector will

actively participate only as necessary to clarify issuesr.'

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

respective managers for resolution. As necessary the 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

inspection report no later than 30 working days following

the inspection, unless a different timeframe is agreed

to by both parties. For inspections 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'

evaluation report stating its findings. The report will

be submitted by the RCRA Compliance Section Chief to the

Hazardous Waste Compliance and permitting Manager and

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COMPLIANCE ASSURANCE AGREEMENT

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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

called by either party to discuss the substance of EPA's

findings.' The evaluation reports will be used as one of

the tools to assess the, quality of, and identify and correc~ problems with, the compliance inspection 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

any applicable penalties based on the 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

minimum level provided in DEQ Hazardous Waste Enforcement

Policy without acceptable justification for such a

deviation. Acceptable justification will be determined

by the RCRA Compliance Chief or higher level management

at EPA but is subject to challenge and discussion by DEQ.

3. A request from the state for EPA enforcement action.

4. Where there are violations of an EPA order or,consent

decree.

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6.

In consultation with the state, where there are

violations of national significance or where interstate

issues are involved.

Violations of HSWA and federal rules promulgated pursuant

to HSWA, for ~hich the state is not authorized.

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COMPLIANCE ASSURANCE AGREEMENT

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D. Advance Hotification and Conaultation

A policy 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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All coordination, notification and reporting requirements

stated in the tinal authorization MOA will be followed

by both the State and EPA.

Whenever possible the State and EPA shall use regular

compliance meetings to consult with each other and verify c~mpliance and enforcement circumstances. .

These meetings will have written agendas (developed with

input from both the State and EPA) available to 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 days following the meeting. EPA and the 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, such notice and meeting shall occur at least

15 working days in advance. This notification will be

provided to the State Hazardous and Solid Waste 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

in good faith regarding an appropriate enforcement action

in lieu of the 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 •

When EPA or the State has compliance information relevant

to a pending or issued enforcement action on a facility

being inspected or permitted under the State/EPA

Agreement (e.g. lab data, consultant reports, compliance

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COMPLIANCE ASSURANCE AGREEMENT

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April 3, 1991

followups, manifest discrepancy reports, etc.), they will

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 point when 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

Permitting Manager 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 be made through the DEQ Hazardous Waste File Clerk

or appropriate staff~ Professional courtesy should be

exercised by all staff. No access to files without prior

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 consultation with the other party shall

occur. Each party will be apprised of what is planned

to be said in the press release and given the opportunity

to participate in a combined press release. Where

possible, combined press releases are encouraged.

Coordination and prior notice on press releases is the

responsibility of the agency pUblic information officers.

At least three days notice will be given prior to a press release.

B. Timely and Appropriate Bnforoement Aotion

It is understood that the State will ad4ress all violations of the

Hazardous Waste Regulations within the state's jurisdiction unless

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

priority violator in its enforcement response policy. For purposes

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 flagrant or wilitul action or conduct violate the

statute or regulations;

knowingly dispose of hazardous waste into the

environment, or who cause a release of hazardous waste

into the environment which 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 and has either failed

to correct the violations or has later committed

violations similar to those identified in a past formal

enforcement action;

4. violates a hazardous waste permit condition or order that

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.

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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

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COMPLIANCE ASSURANCE AGREEMENT

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·timely and appropriate manne~. An EPA overtile is not presumed to

be a routine matter•. Prior to EPA initiating any specific overfile

enforcement action the State and EPA agree to follow procedures

described in section D above.

~. In.pectioD Procedure.

The ·following summarizes EPA expectations for RCRA inspection

repor.ts unless otherwise agreed to:

A complete inspection report should consist of all applicable DEQ

checklists properly and completely filled out, photographs, supporting documentation, and a narrative report of the 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 of the information that should be included

in riarrative reports. This list is not intended to 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).

A discussion on facility operations and processes, all

hazardous and solid waste streams (inclUding their

origin, management practices and disposition). Diagrams

and photographs. are particularly useful when justifying

enforcement actions.

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COMPLIANCE ASSURANCE AGREEMENT .1 FINAL

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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

which identifies apparent or possible' violations and type

and class of each violation.

8. If. items of interest were not fully inspected or

evaluated, this should be.reported. Checklist items are

inadvertently missed 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. inspection and 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 of data 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, or within the alternately agreed upon timeframe, copies

of inspection reports and any 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

of the inspection, or within the alternately agreed-upon timeframe,

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

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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.

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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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