COMPLIANCE & ENFORCEMENT HANDBOOK
Version - 12/1/03
TM-02-01
TABLE OF CONTENTS
TABLE OF APPENDICES INTRODUCTION CHAPTER 1: RECENT HISTORY GREGORY V. FOX CONSENT DECREE (1995) REGULATORY REFORM (1998) Inspection Rights Timely Inspection Report Opportunity to Correct Deficiencies Action Updates GREGORY V. SCHAFER CONSENT DECREE (2000) CHAPTER 2: COMPLAINT RECEIPT PROCEDURES CHAPTER 3: INSPECTION PROCEDURES CHAPTER 4: VIOLATION CATEGORIES MINOR VIOLATIONS MAJOR VIOLATIONS SIGNIFICANT NON-COMPLIANCE (SNC) PENALTY NON-COMPLIANCE (PNC) CHAPTER 5: INFORMAL COMPLIANCE ASSURANCE TOOLS COMPLIANCE STATUS LETTER (CSL) CAUTION LETTER (CL) NOTICE OF OPPORTUNITY TO CORRECT DEFICIENCIES (NOC) NOTICE OF VIOLATION (NOV) NOTICE OF ENVIRONMENTAL NUISANCE (NEN) CHAPTER 6: FORMAL ENFORCEMENT TOOLS CONSENT ORDER COMPLIANCE ORDER/ABATEMENT ORDER COMPLIANCE ORDER WITH CIVIL ADMINISTRATIVE PENALTY (Drinking Water) ORDER ASSESSING A CIVIL PENALTY (Hazardous Waste) LICENSE SUSPENSION/REVOCATION CIVIL REFERRAL Temporary Restraining Order/Preliminary Injunction Permanent Injunction/Civil Penalty Consent Judgment/Consent Decree CRIMINAL REFERRAL BOARD OF TECHNICAL REGISTRATION REFERRAL CHAPTER 7: ENFORCEMENT ESCALATION PROCEDURES CHAPTER 8: PENALTY DETERMINATIONS GENERAL SETTLEMENT PENALTY OFFER ADJUSTMENT FACTORS Aggravating Factors Mitigating Factors Deterrence Factors GENER AL SETTLEMENT CRITERIA Likelihood of Success Relevant Judicial Precedent Ability to Pay Penalty
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SUPPLEMENTAL ENVIRONMENTAL PROJECTS (SEPs) STIPULATED PENALTIES CHAPTER 9: ENFORCEMENT APPROVAL PROCEDURES NOTICE OF OPPORTUNITY TO CORRECT NOTICE OF VIOLATION/NOTICE OF ENVIRONMENTAL NUISANCE NOTICE OF VIOLATION CLOSURE LETTER (WITH NO FURTHER ACTION) CONSENT ORDER COMPLIANCE/ABATEMENT ORDER COMPLIANCE ORDER WITH CIVIL ADMINISTRATIVE PENALTY LICENSE SUSPENSION/REVOCATION ORDER ASSESSING A CIVIL PENALTY TERMINATION OF ADMINISTRATIVE ORDER TEMPORARY RESTRAINING ORDER/PRELIMINARY INJUNCTION PERMANENT INJUNCTION/CIVIL PENALTY CIVIL SETTLEMENT CRIMINAL REFERRAL BOARD OF TECHNICAL REGISTRATION REFERRAL CHAPTER 10: COMPLIANCE AND ENFORCEMENT TIME FRAMES CHAPTER 11: SPECIAL PENALTY CONSIDERATIONS FOR SMALL BUSINESSES SIZE OF PENALTY REDUCTION PENALTY REDUCTION REQUIREMENTS CHAPTER 12: SPECIAL PENALTY CONSIDERATIONS FOR SMALL COMMUNITIES SIZE OF PENALTY REDUCTION PENALTY REDUCTION REQUIREMENTS SMALL COMMUNITY ENVIRONMENTAL PROTECTION PLAN REQUIREMENTS CHAPTER 13: ENFORCEMENT RELATED COMMITTEES COMPLIANCE AND ENFORCEMENT COMMITTEE COMPLIANCE AND ENFORCEMENT OVERSIGHT COMMITTEE CHAPTER 14: SPECIAL ENFORCEMENT CONSIDERATIONS FOR THE UST CORRECTIVE ACTION SECTION UST CORRECTIVE ACTION ISSUES STATE ASSURANCE FUND (SAF) ISSUES State Assurance Fund (SAF) Reimbursement SAF Pre-approval Administrative Order Violations STATE LEAD CORRECTIVE ACTIONS CHAPTER 15: SPECIAL ENFORCEMENT CONSIDERATIONS FOR SPILLS and PARTICIPATION IN THE VOLUNTARY REMEDIATION PROGRAM CHAPTER 16: PERMIT INSPECTION CHECKLIST DEVELOPMENT PROCESS
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TABLE OF APPENDICES
# B1 B2 Document Description Action Update Notification Complia nce Order with Civil Administrative Penalty Case Development Memorandum for Filing a Civil Complaint Case Development Memorandum for Negotiating a Civil Settlement Caution Letter Order Assessing a Civil Penalty Complaint Receipt Form Compliance/Abatement Order Compliance Status Letter Consent Order Criminal Information Transmittal Memorandum License Revocation License Suspension Notice of Opportunity to Correct Closure Letter Notice of Opportunity to Correct Deficiencies Notice of Violation (Water Quality Permit Self-Monitoring Violations) Notice of Violation (Significant and Other Violations) Type Boilerplate Boilerplate Updated 9/9/03 7/1/02 Chapter(s) 1, 3, 15 6
B3
Boilerplate
12/1/03
6, 7
B4 B5 B6 B7 B8 B9 B10 B11 B12 B13 B14 B15 B16
Boilerplate Boilerplate Boilerplate Boilerplate Boilerplate Boilerplate Boilerplate Boilerplate Boilerplate Boilerplate Boilerplate Boilerplate Boilerplate
12/1/03 9/9/03 7/1/02 1/14/02 7/1/02 9 /9/03 12/1/03 12/1/03 7/1/02 7/1/02 9/9/03 9/9/03 9/9/03
7 5 6, 7 2 6 5 6 6 6 6 3, 5, 7 3, 5, 7 5, 7
B17
Boilerplate
9/9/03
3, 5, 7
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# B18
Document Description Notice of Violation (Significant Violations Only) Notice of Violation Closure Letter (With No Further Action) Compliance Documented Letter (Reserving Further Action) Notic e of Violation Cover Letter Language Notice of Violation Reminder Letter Notification of Inspection Rights Form Request for Assignment of an Assistant Attorney General Termination of Administrative Order Administrative Order Notice of Violation Cover Letter Language UST Corrective Action Compliance Documented Letter (Reserving Further Action) UST Corrective Action Section Consent Order Notic e of Violation Cover Letter Language Administrative Decision Finding Violation of Consent Order and Withholding Payment from the State Assurance Fund Incident/Spill Report Form Spill Notice of Violation Cover Letter Language Voluntary Remediation Program Description Compliance Documented Letter (for Participation in the Voluntary Remediation Progr am)
Type Boilerplate
Updated 9/9/03
Chapter(s) 3, 5, 7
B19
Boilerplate
9/9/03
3, 5, 7
B20 B21 B22 B23 B24 B25 B26
Boilerplate Boilerplate Boilerplate Boilerplate Boilerplate Boilerplate Boilerplate
12/1/03 9/9/03 9/9/03 12/1/03 12/1/03 7/1/02 1/14/02
3, 5, 7 3, 5, 7 7 3 6, 7 6, 7 3, 5, 7
B27
Boilerplate
12/1/03
14
B28
Boilerplate
1/14/02
14
B29
Boilerplate
7/1/02
14
B30 B31 B32
Boilerplate Boilerplate Boilerplate
7/1/02 7/1/02 7/1/02
15 15 15
B33
Boilerplate
12/1/03
15
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#
Document Description Notice of Violation (Water Quality Permit Failure to Submit a Self-Monitoring Report Form) Consen t Order with Civil Administrative Penalty Notice of Environmental Nuisance Notice of Environmental Nuisance Cover Lette r Language Notice of Environmental Nuisance Closure Letter Enforcement Action/Settlement Approval Form Consent Order Negotiation Guidelines Hazardous Waste Administrative Penalty Guidelines UST Corrective Action Section Addendum to Consent Order Negotiation Guidelines Air Quality Major Violations List Air Quality Minor Violations List Asbestos NESHAP Major Violations List Drinking Water Major Monitoring and Reporting Violations List Drinking Water Major Violations List Drinking Water Minor Violations List Hazardous Waste Major Violations List Hazardous Waste Minor Violations List
Type
Updated
Chapter(s)
B34
Boilerplate
9/9/03
7
B35 B36 B37
Boilerplate Boilerplate Boilerplate
12/1/03 9/9/03 9/9/03
6 5 5
B38
Boilerplate
9/9/03
5
B39 G1 G2
Boilerplate Guidance Guidance
9/2/03 8/7/01 10/26/00
7, 9 6 6, 8
G3 L1 L2 L3 L4 L5 L6 L7 L8
Guidance Major/Minor List Major/Minor List Major/Minor List Major/Minor List Major/Minor List Major/Minor List Major/Minor List Major/Minor List
7/1/02 9/4/03 9/4/03 1/14/02 9/4/03 9/4/03 9/4/03 9/4/03 9/4/03
14 4, 7 4, 7 4, 7 4, 7 4, 7 4, 7 4, 7 4, 7
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# L9
Document Description Reuse of Reclaimed Water Major Violations List Reuse of Reclaimed Water Minor Violations List Solid Waste Major List Solid Waste Minor List UST Inspections & Compliance Major Violations List UST Inspections & Compliance Minor Violations List Vehicle Emission Inspections Major List Vehicle Emission Inspections Minor List Water Pollution Control Major Violations List Water Pollution Control Minor Violations List Water Quality Permit Caution Level Violations List Water Quality Permit Major Violations List LUST Enforcement Major Violations List Biosolids Minor Violations List Biosolids Major Violations List Environmental Nuisance Conditions List Operator Certification Major Violations List Agency Activities Exempt from Inspection Procedures
Type Major/Minor List
Updated 9/4/03
Chapter(s)
4, 7 4, 7 4, 7 4, 7 4, 7
L10 L11 L12 L13
Major/Minor List Major/Minor List Major/Minor List Major/Minor List
9/4/03 9/4/03 9/4/03 9/4/03
L14 L15 L16 L17 L18 L19 L20 L21 L22 L23 L24 L25 M1
Major/Minor List Major/Minor List Major/Minor List Major/Minor List Major/Minor List Major/Minor List Major/Minor List Major/Minor List Major/Minor List Major/Minor List Major/Minor List Major/Minor List Miscellaneous
9/4/03 9/4/03 9/4/03 9/4/03 9/4/03 7/18/01 7/18/01 1/14/02 4/1/03 4/1/03 4/1/03 4/1/03 7/31/98
4, 7 4, 7 4, 7 4, 7 4, 7 4, 5, 7 4, 7 4, 7 4, 7 4, 7 4, 7 4, 7 1, 3
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# M2 M3 M4 M5 M6 M7
Document Description Enforcement Authorities Table Gregory v. Fox Consent Decree Gregory v. Schafer Consent Decree Inspection Authorities Table Opportunity to Correct Implementation Letter Potential Arizona Legal Authorities/Violations Associated with Spills Summary of Enforcement Approval Procedures - Phoenix Office Summary of Enforcement Approval Procedures - Regional Offices Administrative Hearing Procedures for Delegated Programs Policy Civil Penalty Policy Compliance and Enforcement Policy Drinking Water Section Application of Penalty Policy Intake Procedures for Taking Complaints Alleging Violations of Rule or Statute Criminal Information Transmittal Policy RCRA Civil Penalty Policy Inspection Procedures Policy Site Access Policy Enforcement Waiver Policy (Small Business)
Type Miscellaneous Miscellaneous Miscellaneous Miscellaneous Miscellaneous Miscellaneous
Updated 7/1/02 12/2/93 3/13/00 7/1/02 2/7/00 7/1/02
Chapter(s) 6 1 11 3 11 15
M8
Miscellaneous
12/1/03
9
M9
Miscellaneous
12/1/03
9
P1 P2 P3 P4
Policy Policy Policy Policy
5/9/97 8/4/94 5/11/00 11/30/95
6 8 11 8
P5 P6 P7 P8 P9 P10
Policy Policy Policy Policy Policy Policy
5/11/00 2/9/96 5/30/98 7/31/98 3/3/97 5/1/98
2 6, 9 8 3 3 11
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# P11
Document Description Notification Policy For Local Governmental Agencies Drinking Water Program Sanitary Survey Policy Compliance and Enforcement Committee Policy Enforcement of Annual Emissions Inventory Questionnaire Policy Water Quality Compliance Enforcement Escalation Policy Compliance and Enforcement Press Policy Reporting Requirements for Public Water Systems Policy
Type Policy
Updated 4/24/98
Chapter(s) 7
P12
Policy
1/17/97
3
P13
Policy
5/9/97
13
P14
Policy
2/4/99
7
P15 P16 P17
Policy Policy Policy
10/20/00 10/12/96 9/25/96
7 7 7
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INTRODUCTION The purpose of this handbook is to promote appropriate, consistent and timely evaluations of compliance and initiation of enforcement by the Arizona Department of Environmental Quality (ADEQ). This handbook describes a uniform system for pursuing and escalating enforcement. It serves as a road map for new ADEQ compliance and enforcement staff, and a desk reference for those with more experience. It also provides guidance to those local authorities that have undertaken compliance and enforcement responsibilities through a delegation agreement with ADEQ. All of the concepts within ADEQ's Compliance and Enforcement Policy, along with a number of other ADEQ compliance and enforcement related policies, have been incorporated into this handbook either explicitly or through the development of boilerplate. Although ADEQ strives to respond to every instance of non-compliance, such action is not always feasible or appropriate. Furthermore, not every violation needs to be met with an identical response, but rather a response that is commensurate to the violation. An analogy is often drawn between the various types of enforcement options and a craftsman's tools. Like a craftsman, ADEQ must choose the right regulatory tools when building an enforcement case. This handbook describes the regulatory tools available to ADEQ and how ADEQ will use them to craft a credible and effective enforcement presence in Arizona. This handbook is neither a final agency action nor a rule, but intended solely as guidance. It is not intended, nor can it be relied upon, to create any rights enforceable by any party. Although intended to provide consistency, nothing in this handbook is intended to limit the enforcement discretion of ADEQ. Case-specific deviations from this handbook are permitted with prior approval from the appropriate ADEQ division director. Failure to follow this handbook will not prevent ADEQ from bringing an enforcement action that is otherwise appropriate to the violation. To make this handbook easier for staff to use as a desk reference, information useful on a day-today basis has been included as an appendix. A table listing the date of the most recent version of each appendix can be found in the Table of Appendices. This table will be updated as modifications to the appendices are made. The following identifiers have been used in this handbook to indicate references to the different types of appendices:
Appendix: Boilerplate: Guidance: ICE: Policy:
Denotes a miscellaneous document that has been included as an appendix. Denotes a boilerplate that has been included as an appendix. Denotes a guidance document that has been included as an appendix. Denotes a required entry in the Inspections, Compliance and Enforcement (ICE) database. Denotes an ADEQ policy that has been included as an appendix.
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Introduction
CHAPTER 1: RECENT HISTORY The following is a brief summary of several significant events that have influenced ADEQ's implementation of its compliance and enforcement responsibilities. These events in no way represent the entire history of environmental enforcement in Arizona, but rather are included in this handbook because they have laid the groundwork for the compliance and enforcement policies developed by ADEQ. GREGORY V. FOX CONSENT DECREE (1993) In 1993, the Arizona Center for Law in the Public Interest, on behalf of the Sierra Club and Michael Gregory, filed a civil action against ADEQ alleging that ADEQ had failed to exercise its then non-discretionary duty to enforce Arizona's water quality protection laws.1 Without resolving the allegations, both parties agreed to settle the matter by entering into a court sanctioned Consent Decree. This Consent Decree, commonly referred to as Gregory v. Fox, applied almost exclusively to ADEQ's water quality program by describing a very prescriptive method of enforcement of Arizona's water pollution laws. For example, the Decree required ADEQ to issue a Notice of Violation (NOV) for all water quality protection violations and to escalate enforcement for every violation not resolved through an NOV. Although not required to do so under the Consent Decree, ADEQ chose to implement the requirements of the Decree throughout the Agency as a matter of policy. The resulting policy, known as the Compliance and Enforcement Policy established the baseline for enforcement throughout the entire Agency.
Appendix:
The Gregory v. Fox Consent Decree can be found as Appendix M3.
REGULATORY REFORM (1998) As part of regulatory reform in 1998, Arizona enacted several provisions that have significantly impacted ADEQ's compliance and enforcement activities. Codified at A.R.S. ? 41-1009, the regulatory reform requires ADEQ (and all other state agencies) to provide inspection rights before an inspection, a timely inspection report following the inspection, an opportunity to correct certain non-significant deficiencies discovered during the course of an inspection, and updates on actions that will be taken after the inspection. Violation of A.R.S. ? 41-1009 not only constitutes cause for disciplinary action or dismissal, but also must be considered by a court as grounds for reduction of a civil or administrative penalty.2 A description of each of these requirements along with how ADEQ has implemented the provisions is outlined below. By law, the applicability of these statutory requirements is limited to inspections performed at a facility in connection with the issuance of a license or to determine compliance with licensure
T h e A r i z o n a Revised Statute that was the basis for the original lawsuit has since been chang e d . ADE Q ' s e n f o r ce m e n t of water pollution protection laws, like all other enforcement, is now discretionary. T h e s e ramifications do not apply to deviations from AD E Q ' s policy which significantly broadens the t y p e s of inspections that are subject to the A.R.S. ? 41-1009 A.R . S . ? 41-1009 procedures. ADE Q C o m p l i a n c e & En f o r c e m e n t Ha n d b o o k - Version: 1/14/02 Page 1-1
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requirements. As a matter of policy ADEQ has nevertheless applied the requirements in A.R.S. ? 41-1009 to all field inspections it performs, with few exceptions.3 Inspection Rights Pursuant to Subsections (A) and (B) of A.R.S. ? 41-1009, agencies are required to provide a detailed explanation of a regulated person's rights both verbally and in writing before conducting an inspection. Furthermore, the agency must make an attempt to get a representative's signature indicating that the agency has provided the required written explanation of rights. ADEQ has implemented this requirement by developing a form to be used by inspectors when conducting an inspection.
Boilerplate: The boilerplate Notice of Inspection Rights form can be found as Appendix B23.
Timely Inspection Report Pursuant to Subsection (D) of A.R.S. ? 41-1009, agencies are also required to provide a copy of an inspection report either at the time of the inspection or within 30 working days of the completion of the inspection. The Inspections Compliance and Enforcement (ICE) database allows ADEQ to monitor the time taken to issue inspection reports very closely. Managers are expected to regularly generate reports indicating compliance with this provision. Opportunity to Correct Deficiencies Pursuant to Subsection (E) of A.R.S. ? 41-1009, an agency may provide an opportunity to correct those deficiencies discovered during the course of an inspection, so long as the deficiency is not committed intentionally, can be correctable within a reasonable amount of time, is not evidence of a pattern of non-compliance and does not pose a risk to any person, the public health, safety or welfare or the environment. ADEQ has implemented this concept largely through the development of lists of minor and major violations to be used in determining when to allow an opportunity to correct deficiencies versus issuance of a Notice of Violation. Furthermore, ADEQ has chosen to implement the "may" in A.R.S. ? 41-1009, as a must, as a matter of policy. ADEQ will provide an opportunity to correct for those violations that are unintentional, can be corrected in a reasonable amount of time, are not a repeat violation, and are on the list of minor violations. A detailed discussion of the types of violations and associated lists can be found in Chapter 4 (Violation Categories). On February 7, 2000, ADEQ issued a letter describing how it would implement the opportunity to correct provisions of A.R.S. ? 41-1009. In this letter ADEQ stated that it would provide an opportunity to correct where a violation does not create a significant risk to any person, the public health, safety or the environment and that ADEQ considers a significant risk to include the reasonable probability of a material harm to any person, the public health, safety, welfare or the environment, or the inability to assess whether there is a reasonable probability of material harm
3
A list of the inspections ADEQ has exempted from its policy decision can be found in Appendix M1. Page 1-2
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as a result of the violation. These concepts were used to develop the lists of major and minor violations that are included as appendices to this handbook.
Appendix:
The February 7, 2000 letter can be found as Appendix M6.
Action Updates Pursuant to Subsection (H) of A.R.S. ? 41-1009, state agencies must provide regulated persons an update on the status of any action resulting from an inspection at least once every month following the inspection. The agency may stop providing updates once the regulated person is notified that no action will result or after the completion of an action resulting from the inspection. ADEQ has developed a boilerplate action update letter and will regularly monitor the monthly update deadlines using the ICE database.
Boilerplate: The boilerplate Action Update Letter is Appendix B1.
GREGORY V. SCHAFER CONSENT DECREE (2000) In 2000, the parties to the Gregory v. Fox Decree agreed to a five year extension due to a dispute over whether or not ADEQ had strictly complied with the original Decree. The new Decree, known as Gregory v. Schafer, includes some significant modifications to the original Decree. First, it recognizes ADEQ's responsibilities under the newly adopted regulatory reform requirements mentioned above. Second, and more importantly, the new Decree recognizes ADEQ's need to exercise its enforcement discretion in a responsible manner. As a result, the new Decree explicitly allows prioritization of enforcement by only requiring ADEQ to issue NOVs for those water pollution control violations that are significant. Another Consent Decree requirement worth noting is ADEQ's commitment to create and maintain a comprehensive multi-media tracking log for compliance and enforcement activities. Initially, this led to the establishment of a paper repository for tracking all of ADEQ's enforcement actions. Ultimately this resulted in the establishment of the Inspection Compliance and Enforcement (ICE) database used by ADEQ to track all compliance and enforcement activities within the agency. Once again, and even though not required, ADEQ decided as a matter of policy to apply the concepts in the Gregory v. Schafer Consent Decree to the entire agency by amending the agencywide Compliance and Enforcement Policy. These concepts are now incorporated into this handbook.
Appendix: Policy:
The Gregory v. Schafer Consent Decree can be found as Appendix M4. The Compliance and Enforcement Policy can be found as Appendix P3.
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CHAPTER 2: COMPLAINT RECEIPT PROCEDURES As part of the regulatory reform in 1998, Arizona adopted A.R.S. ? 41-1010 which requires that an individual who reports a violation of law or rule to an agency disclose his/her name to that agency. A.R.S. ? 41-1010 also provides that the complainant's name be kept as a public record unless that agency determines that the release of the complainant's name may result in substantial harm to any person or to the public health or safety. In order to ensure consistent implementation of A.R.S. ? 41-1010, ADEQ employees must adhere to the procedures set forth below in handling all reports where the complainant or informant is alleging a violation of law or rule. As a result, only those employees that are familiar with these procedures should receive complaints. STEP 1: Introduction Upon becoming aware that a person wishes to make a complaint, the ADEQ employee must state his/her name, job title, ADEQ division, section and unit. STEP 2: Get Complaint Information The ADEQ employee should then obtain and document information regarding the violation, asking any appropriate follow-up questions. When asking for information, ADEQ should request documentation verifying the complaint information. Verifying documentation may include photographs, documents, other witnesses, etc. STEP 3: Inform Complainant of Procedure After obtaining the relevant information the ADEQ employee must notify the complainant that: "Arizona law requires you to provide your name during the course of reporting an alleged violation of law or rule. Under the law, your name will be placed in the public file unless the release of your name may result in substantial harm to any person, including yourself, or to the public health or safety. However, if you intend on remaining anonymous, ADEQ may not force you to identify yourself." STEP 4: Ask for Complainant's Name The ADEQ employee must then ask for the complainant's name and whether any harm could come to complainant, another person, or the public if the complainant's identity were to become public. If the complainant makes a legitimate claim of potential harm, the ADEQ employee may state that the complainant's name will initially be placed in a confidential file, but that ADEQ cannot guarantee that ADEQ will be able to keep the complainant's identity confidential. STEP 5: Document Claimed Harm If the complainant indicates potential harm exists, the employee must obtain and document all the information regarding such harm, using follow-up questions as necessary. The employee should be specific about what the complainant is worried about, what would happen if the
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complainant's identity were to become public, and/or what the complainant thinks would happen. The ADEQ employee must not place the name in the public record if the complainant alleges substantial harm, until after consultation with a manager, ADEQ's Special Counsel, and/or the Attorney General's Office. STEP 6: Get Complainant Phone Number If the complainant provides his or her name, the ADEQ employee should ask for a telephone number so that the complainant can be contacted for further information regarding the complaint or any claim of harm. All complaints involving potentially criminal activity should be referred to the Attorney General's Office as soon as possible using the procedures described in Chapter 6 (Formal Enforcement Tools) and Chapter 9 (Enforcement Approval Procedures). Furthermore, after obtaining the relevant information, the ADEQ employee may suggest that the complainant contact the Environmental Enforcement Section of the Arizona Attorney General's Office at (602) 542-8500.
Boilerplate: The boilerplate Complaint Receipt Form can be found as Appendix B7. Policy: The Intake Procedures for Taking Complaints Alleging Violations of Rule or ICE:
Statute Policy can be found as Appendix P5. All complaints received by ADEQ must be logged in the ICE database
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CHAPTER 3: INSPECTION PROCEDURES Although the primary purpose of an ADEQ inspection is to evaluate compliance with environmental laws, including rules and permits, it also serves as an opportunity for ADEQ to promote pollution prevention and compliance by offering technical assistance. As a result, ADEQ strives not only to identify all instances of non-compliance, but also to identify opportunities for pollution prevention and actions that might be taken to avoid future noncompliance. ADEQ will differentiate between requirements and recommendations both during the inspection and within the inspection report.
Appendix: Policy: Policy:
A table describing ADEQ's authorities to conduct inspections can be found as Appendix M5. The Inspection Procedures Policy can be found as Appendix P8. The Drinking Water Program Sanitary Survey Policy can be found as Appendix P12.
By law,1 the inspection procedures described in A.R.S. ? 41-1009 and outlined below do not apply to: ? Inspections where ADEQ has a reasonable suspicion to believe that the regulated person is engaged in criminal activity. ? Inspections that are not necessary for the issuance of a license, or to determine compliance with licensure requirements. Pursuant to ADEQ policy, though, the inspection procedures described in A.R.S. ? 41-1009 and outlined below apply to all instances where an ADEQ employee will be conducting an inspection to determine: ? Compliance with a license (permit); ? Eligibility for a license (permit); and ? Compliance with environmental statutes, rules, orders, judgments or decrees.2
Appendix:
A list of those agency activities that are exempt from ADEQ's policy of following the A.R.S. ? 41-1009 inspection rights procedures can be found as Appendix M1.3
1
S e e A.R.S. ? 41-1009(J)
A s mentioned previously in the discussion of regulatory reform , A.R.S. ? 41-1009, does not ap p l y to c o m p l i a n c e and enforc e m e n t inspections that do not co n c e r n license comp l i a n c e o r eligibility (see A.R.S. ? 411 0 0 9 ( J ) ) . As a matter of policy, though, ADEQ believes that it is in the best interest of the public and the agency t h a t all ADE Q com p l i a n c e and enforcement inspections conform with A.R.S. ? 41-1009.
3
2
O t h e r exempt activities may be added to the list by filing a written request with the Office of Special
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Although intended to provide consistency, these procedures are not intended to limit the enforcement discretion of ADEQ. Case-specific deviations from these procedures are permitted with prior approval from the appropriate ADEQ division director. Failure to follow these procedures will not prevent ADEQ from bringing an enforcement action that is otherwise appropriate to the violation. STEP 1: Inspection Preparation Prior to conducting an inspection at a facility, the inspector must review the facility's file(s) and the ICE database for all compliance related information, including associated correspondence. The inspector must also determine whether a facility-specific inspection checklist has been developed. If a checklist has already been developed the inspector must review the checklist and make any necessary changes. If a checklist has not already been developed, the inspector must develop a checklist based upon the statutes, rules, permits, administrative orders, and civil judgments that apply to the facility prior to conducting the inspection. The checklist may also contain preventative measures or recommendations that are not based upon legal requirements, but must be noted as such in the checklist and any reports or other correspondence based upon the checklist.
ICE:
Once the file review has been completed, the inspector must enter Pre-Inspection File Review Completed as an action in the Inspection Screen.
STEP 2: Inspection Scheduled While some ADEQ programs schedule inspections with the facility, others find it more effective to conduct inspections without prior notification of the facility.4
ICE:
Regardless of whether the facility is notified beforehand, Inspection Scheduled must be entered as an action in the Inspection Screen. The date to be entered will be the date the facility inspection is to be initiated.
STEP 3: Identification Immediately upon entering the facility, the inspector must present an ADEQ photo identification badge to the regulated person or the authorized facility representative. If a person/representative is not present at the site: The inspector must attempt to contact an authorized representative via telephone prior to entry of the facility. If this is unsuccessful, the inspector must note this on the Notice of Inspection Rights form and place a copy in the facility file. The inspector may then proceed with the inspection.
P u r s ua n t to A.R.S. ? 49-203(B)(1) which applies to water quality control related inspections, prior notice i s required un l e s s AD E Q determines that "reasonable gro u n d s exist to believe that such notice would frustrate e n fo r c e m e nt of water quality control laws." If such a determination is made, a description of the grounds must be d o c um e nt ed in the Inspection Screen of ICE. A D E Q Co m p l i a n c e & En f o r c e m e n t Ha n d b o o k - Version: 12/1/03 Page 3-2
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If the person/representative refuses entry: The inspector should identify ADEQ's legal authority for conducting the inspection and explain that ADEQ will immediately contact the Attorney General's Office to obtain a search warrant.5 The inspector must then immediately find the closest public right-of-way and contact his or her supervisor to explain the situation. The supervisor should then contact the Attorney General's Office with assistance from ADEQ's Office of Special Counsel for the purpose of seeking a search warrant. The inspector should remain at the closest public right-of-way until receiving the search warrant. Immediately upon receipt of the search warrant, the inspector will conduct the in sp ecti on with the assistance of the appropriate local law enforcement authority.
Policy:
The Site Access Policy can be found as Appendix P9.
STEP 4: Inspection Rights Explained Upon entering the facility, the inspector must explain the following to the regulated person or authorized facility representative: ? The purpose of the inspection ? The legal authority for conducting the inspection ? Any applicable fees that may be charged for the inspection ? That the regulated person or the authorized facility representative is entitled to accompany the inspector during the inspection, including being present for any interview, except confidential interviews ? That if requested by the regulated person or authorized facility representative, ADEQ will provide copies, free of charge, of any original documents taken by ADEQ during the inspection ? The regulated person or the authorized facility representative is entitled to a split of any sample(s) taken during the inspection unless the split of the sample(s) would prohibit the analysis from being conducted or render the analysis inconclusive ? The regulated person or the authorized facility representative is entitled to copies of any analysis performed on samples taken during the inspection. ADEQ will provide such copies at its expense STEP 5: Inspection Rights Form Presented for Signature Once the inspector has explained the inspection rights, he or she must provide the regulated person or the authorized facility representative with a Notice of Inspection Rights form and review it with the regulated person or authorized facility representative. After answering any questions, the ADEQ employee must request that the regulated person/representative sign the form.
Boilerplate: The boilerplate Notice of Inspection Rights form can be found as Appendix B23.
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If the person/representative signs the form: One copy will be provided to the regulated person or authorized facility representative and another copy will be placed in the facility file. If the person/representative declines to sign the form: The inspector must note that decision on the form and provide a copy to the person/representative and place another copy in the facility file. The inspector may still proceed with the inspection. STEP 6: Inspection Performed Inspections performed by ADEQ will be based upon the checklist developed specifically for the facility as described in Step 1. During the course of the inspection, ADEQ will inform each person whose conversation with the inspector is tape recorded that the conversation is being recorded. Furthermore, before interviewing any person during an inspection, ADEQ will inform the person to be interviewed that statements made by that person may be included in the inspection report.6
ICE:
Upon completion of the inspection, the inspector must enter Inspection Conducted in the Inspection Screen.
STEP 7: Inspection Report/Informal Compliance Assurance Documents Created7 After completion of the inspection, the inspector must generate a report summarizing the inspection and identifying those items that were evaluated during the course of the inspection. The inspection report must also set forth all violations or potential violations identified during the inspection. The report may also include ADEQ recommendations, but must clearly differentiate them from violations. If there are no violations found during the course of the inspection: The inspection report must state in specific terms what the inspection covered and in general terms what it did not (based upon the checklist used to conduct the inspection). The inspection report must also include a statement that no ADEQ action will result from the inspection. If there are violations that do not constitute SNC found during the course of the inspection that are corrected before ADEQ leaves the site: The violation(s) will be noted in the inspection report and no enforcement will be taken. Although ADEQ will not initiate enforcement, the violation must still be logged in the ICE database because if the same violation is discovered in another inspection of the facility within a two year period, it will be considered Significant Non-Compliance (SNC) and will result in the
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A s a m a t t e r of p o l i c y , ADE Q will not includ e con f i d e n t i a l interviews in the inspection repo r t .
T h i s section identifies the compliance assurance document that will be used for a particular category of v i o l a t i o n . Chapter 4 (Vio l a t i o n C a t e g o r i e s ) explains how to determine w h i c h category applies. Chapter 5 (Informal C o m p l i a n c e A s s u r a n c e T o o l s ) explains how to prepare the do c u m e n t . A D E Q Co m p l i a n c e & En f o r c e m e n t Ha n d b o o k - Version: 12/1/03 Page 3-4
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preparation of a Notice of Violation (NOV) for approval by the appropriate Division Director or Regional Director.
ICE:
If violations are discovered, the inspector must enter Case Recommended as an action in the Inspections Screen and enter the alleged violations, description of facts, compliance documentation requirements and the date corrected (i.e., the date of the inspection under this scenario) in the Case Screen.
If there are violations that do not constitute SNC found during the course of the inspection that are not corrected prior to ADEQ leaving the site: ADEQ will issue the responsible party a letter known as a Notice of Opportunity to Correct (NOC) allowing an opportunity to correct deficiencies.
Boilerplate: The boilerplate Notice of Opportunity to Correct (NOC) can be found as ICE:
Appendix B15. If violations are discovered, the inspector must enter Case Recommended as an action in the Inspections Screen and enter the alleged violations, description of facts and compliance documentation requirements in the Case Screen.
If there are SNC violations found during the course of the inspection: Staff will prepare a Notice of Violation (NOV) and cover letter for approval by the appropriate Division Director or Regional Director.
Boilerplate: The boilerplate Notice of Violation (NOV) can be found as Appendix B18. Boilerplate: The boilerplate Notice of Violation cover letter language can be found as
Appendix B21. Boilerplate: The boilerplate administrative order Notice of Violation cover letter language can be found as Appendix B26. ICE: If violations are discovered, the inspector must enter Case Recommended as an action in the Inspections Screen and enter the alleged violations, description of facts and compliance documentation requirements in the Case Screen. If there are violations that constitute SNC and violations that do not constitute SNC (a.k.a. "other") violations found during the course of the inspection: Staff will prepare a Notice of Violation (NOV) and cover letter for approval by the appropriate Division Director or Regional Director.
Boilerplate: The boilerplate Notice of Violation (NOV) with "other" violations can be found
as Appendix B17. Boilerplate: The boilerplate Notice of Violation cover letter language can be found as Appendix B21. Boilerplate: The boilerplate administrative order Notice of Violation cover letter language can be found as Appendix B26.
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ICE:
If violations are discovered, the inspector must enter Case Recommended as an action in the Inspections Screen and enter the alleged violations, description of facts and compliance documentation requirements in the Case Screen.
STEP 8: Inspection Report/Informal Compliance Assurance Documents Distributed The ADEQ inspector must give a copy of the inspection report to the person or facility representative at the time of the inspection or within 45 calendar days after the conclusion of the inspection. If the report is not provided at the time of the inspection, it must be hand delivered or sent by U.S. mail by the 45th calendar day, following the conclusion of the inspection.
ICE:
After issuing the inspection report, the inspector must enter Inspection Report Sent to RP as an action in the Inspection Screen.
STEP 9: Action Updates Sent At least once every month after the commencement of the inspection and until ADEQ either takes action or decides not to take action, ADEQ must send the responsible party an update letter describing the status of any action resulting from an inspection. ADEQ must continue to send an action update letter every month until one of the following occurs: ? ADEQ sends the responsible party an inspection report that includes a statement that no further action will be taken based upon the inspection. ? ADEQ sends the responsible party an NOC closure letter for an NOC resulting from the inspection. ? ADEQ sends the responsible party an NOV closure letter (with no further action) for an NOV resulting from the inspection and closes the case. ? ADEQ files a civil complaint for a violation identified during the inspection. ? ADEQ signs a Consent Order for a violation identified during the inspection. ? ADEQ issues a Compliance/Abatement Order for a violation identified during the inspection.
Boilerplate: The boilerplate Action Update Letter can be found as Appendix B1. Boilerplate: The boilerplate NOC Closure Letter can be found as Appendix B14. Boilerplate: The boilerplate Compliance Documented Letter (reserving further action) can be
found as Appendix B20.
Boilerplate: The boilerplate NOV Closure Letter (with no further action) can be found as ICE:
Appendix B19. After sending an Action Update Letter, the inspector must enter Action Update Letter Sent to RP as an action in either the Inspection Screen or the Case Screen (depending on whether a case has been opened). If a Compliance Documented Letter (reserving further action) has been sent, Compliance Document Letter Sent to RP must be entered as an action in the Case Screen. If an NOV Closure Letter
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(with no further action) has been sent, NOV Closure Letter Sent to RP (case closure) must be entered as actions in the Case Screen.
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CHAPTER 4: VIOLATION CATEGORIES All violations discovered by ADEQ during the course of an inspection or by any other means will result in either an informal or formal enforcement response by ADEQ. The severity of the violation will dictate the type of enforcement response to be initiated by ADEQ. A violation falling below the level of Significant Non-Compliance (SNC) will result in ADEQ's allowing an opportunity to correct the deficiency without further enforcement (so long as the violation is corrected within a reasonable period of time). Failing to achieve compliance within the time specified in the letter from ADEQ providing an opportunity to correct deficiencies (an NOC) is SNC. All instances of non-compliance meeting or exceeding the SNC criteria will result in the preparation of a letter that puts the responsible party (such as a facility owner or operator) on notice that the Department believes a violation of an environmental law has occurred. The letter, a Notice of Violation (NOV), describes the facts known to ADEQ at the time of issuance and cites the laws or rules that ADEQ believes the party has violated. A subcategory of SNC is Penalty Non-Compliance (PNC). PNC is defined as those SNC violations that will result in ADEQ seeking monetary penalties in addition to compliance. Achieving compliance within the specified time period in an NOV will result in no further enforcement (provided the violation does not also constitute PNC). If the SNC violation is not resolved by the deadline specified within the NOV, ADEQ will attempt to negotiate an adm inistra tive Consent Order (or a civil Consent Judgment if the SNC violation is also PNC). If attempts to negotiate a Consent Order (or Consent Judgement) are unsuccessful, ADEQ will issue a unilateral Compliance Order requiring compliance within a reasonable time (or if PNC, ask the Attorney General's Office to file a civil lawsuit). MINOR VIOLATIONS Minor violations are those that pose a minimal or non-existent risk to public health and the environment. In other words, a minor violation does not create a reasonable probability of material harm to any person, the public health, safety, welfare or the environment, or the inability to perform such an assessment as a result of the violation. For violation of a statute or rule, or a permit condition based upon a statute or rule, the minor violations are listed as appendices to this handbook and can also be found in the ICE database.1 For violations of permit conditions that are not listed in one of the appendices, the determination will be made on a case-by-case basis and be noted in the facility's inspection checklist (i.e., ADEQ will determine whether the violation creates a reasonable probability of material harm to any person, the public health,
I f a violation not listed in an appendix is discovered during the course of an inspection or investigation, s t af f must provide the Director with a recommended category for listing. The same approval is required for s u g g e s t e d changes in a category for those violations already listed in an appendix to this handbook. A D E Q Co m p l i a n c e & En f o r c e m e n t Ha n d b o o k - Version: 12/1/03 Page 4-1
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safety, welfare or the environment or the inability to perform such an assessment as a result of the violation.)2
Appendix:
Program M i n o r Violation Ap pen dix L2 L22 L6 L8 L10 L12 L14 L16 L18 L19
Air Q uality B i o s o li d s D r i n k i ng Water Ha zard ous W aste R e u s e of Reclaimed Water Solid W aste U S T Inspections & Compliance V e h i c l e Emission Inspections W a t e r Pollution Control W a t e r Q u a l i t y Permit
MAJOR VIOLATIONS Major Violations are those that pose a risk to any person, the public health, safety or welfare or the environment or that cannot be corrected within a reasonable amount of time.3 ADEQ considers risk to mean "a reasonable probability of material harm to any person, the public health, safety, welfare or the environment or the inability to perform such an assessment as a result of the violation." For violation of a statute, a rule, or a permit condition based upon statute or rule, major violations are listed in the appendices to this handbook.1 For violations of permit conditions that are not listed in one of the appendices, the determination will be made on a caseby-case basis and be noted in the facility's inspection checklist (i.e., ADEQ will determine whether there is a reasonable probability of material harm to any person, the public health, safety, welfare or the environment or the inability to perform such an assessment as a result of the violation.)2
I f there has not been a previous determination as to whether violation of the condition is a major violation, s t a ff must provide the appropriate Division Director or Regional Director with a recommendation as to whether v i o l a t i o n of the condition po s e s a reasonable p r o b a b i l i t y of material ha r m to a n y person, the public health, safety, w e l f a r e or the environment or the inability to perform such an assessment as a result of the violation. Once the D i v i s i o n Director or Regional Director has made a final determination, an appropriate notation must be made on the f a c i l i t y 's inspection chec k l i s t . The same p r o c e s s ap p l i e s to suggested ch a n g e s to inspec t i o n checklist notations.
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2
S e e A.R.S. ? 41-1009(E)(2) and (4) Page 4-2
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Appendix:
Program
M a j o r Violation Ap pen dix L1 L3 L23 L5 L7 L21 L25 L9 L11 L13 L15 L17 L20
Air Q uality A s b e st o s NESHAP B i o s o li d s D r i n k i ng Water Ha zard ous W aste L U S T Enforcement O p e r a t o r Certification R e u s e of Reclaimed Water Solid W aste U S T Inspections & Compliance V e h i c l e Emission Inspections W a t e r Pollution Control W a t e r Q u a l i t y Permit
SIGNIFICANT NON-COMPLIANCE (SNC) Significant Non-Compliance (SNC) establishes the level at which ADEQ staff will prepare for approval by the appropriate Division Director or Regional Director, a Notice of Violation which reserves ADEQ's right to pursue formal enforcement, including civil penalties. Those violations which do not result in the issuance of an NOV will result in a Notice of Opportunity to Correct (NOC), which affords an opportunity to correct the violation without the threat of further enforcement if corrected. SNC includes any of the following types of violations: ? A major violation ? A minor violation committed intentionally ? A minor violation that has continued beyond a deadline set within a Notice of Opportunity to Correct (i.e., the responsible party failed to document compliance as noted in the Notice of Opportunity to Correct) ? A violation previously noted or addressed in an NOC or NOV within the past two years ? A violation previously addressed in an administrative order or civil complaint within the past five years ? Violation of a Compliance Order, Consent Order, Consent Judgment or Consent Decree PENALTY NON-COMPLIANCE (PNC) Penalty Non-Compliance (PNC) establishes the level at which ADEQ will seek monetary penalties via a referral to the Attorney General's Office, or in the case of drinking water violations, through the issuance of a Compliance Order with Civil Administrative Penalty.
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Deciding when to seek penalties is a determination made on a case-by-case basis using the criteria described below. Although ADEQ will consider all of the following in determining PNC, a violation of statute, rule, administrative order, or permit meeting any of the criteria may constitute PNC: ? The violation was intended to result in, or actually resulted in, significant cost savings or profits to the responsible party ? The responsible party engaged in willful or negligent conduct leading to the violation (e.g., the lack of provisions for detecting or preventing the violation) ? The responsible party previously received an NOV or administrative order for the same violation within the past two years ? ADEQ previously filed a civil complaint against the responsible party ? The violation resulted in actual harm, or substantial risk of harm, to human health or the environment as determined using the following factors: < An actual release < Violation of a water quality standard4 < Exceedance of a soil remediation standard5 < Severe mismanagement of a pollutant < The amount of the pollutant involved < The toxicity of the pollutant involved < The proximity of biological/human receptors or sensitive environmental media such as a drinking water supply, populated area or surface water < Lack of notifying persons potentially affected by the violation as required by law
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CHAPTER 5: INFORMAL COMPLIANCE ASSURANCE TOOLS The majority of violations ADEQ discovers are resolved through the use of informal compliance assurance tools. Although ADEQ has formal enforcement tools at its disposal and reserves the right to use them at any time, it will use formal enforcement as an initial enforcement response only under the most egregious or time-sensitive situations. Furthermore, it is ADEQ's longstanding position that use of an informal compliance assurance tool does not constitute an "action against the party" and is not an "appealable agency action".1 COMPLIANCE STATUS LETTER (CSL) When ADEQ records indicate the presence of a potential violation that is older than 180 days and an ADEQ action has not previously been initiated, a compliance status letter may be sent to the facility prior to the issuance of a Notice of Violation. A compliance status letter provides the responsible party an opportunity to submit evidence that the previously identified violation has been corrected or the violation does not exist.
Boilerplate: The boilerplate Compliance Status Letter can be found as Appendix B9.
CAUTION LETTER(CL) (water permit violations only) A caution letter is an informal compliance assurance tool used by ADEQ to notify a water quality permittee that the violations reported to ADEQ on a Self-Monitoring Report Form (SMRF) warrant some sort of corrective action by the permittee. Discharge limit or Technical Review Criteria (TRC) violations constituting a caution level exceedance (CLE) will result in issuance of a Caution Letter (CL). The Caution Letter states that ADEQ will issue an NOV if similar levels are reported in the next three review periods. A caution letter allows the permittee to resolve a problem before it becomes significant. To that end, ADEQ will offer compliance assistance in the letter.
Boilerplate: The boilerplate Caution Letter can be found as Appendix B5. Appendix: The Caution Levels for water permit violations can be found as Appendix L19.
NOTICE OF OPPORTUNITY TO CORRECT DEFICIENCIES (NOC) An NOC is an informal compliance assurance tool used under A.R.S. ? 41-1009(E) to put a responsible party (such as a facility owner or operator) on notice that ADEQ believes a nonsignificant violation of an environmental law has occurred. It describes the facts known to ADEQ at the time of the letter and cites the laws or rules that ADEQ believes have been violated. An NOC provides the responsible party an opportunity to resolve the violation(s) or deficiency(ies) before ADEQ takes formal enforcement. If the deficiencies are corrected, there will be no enforcement taken by ADEQ.
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A s defined in A.R.S. ?? 41-1092.12(E)(1) and 41-1092(3), respectively. Page 5-1
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?
? ?
ADEQ will provide the responsible party an opportunity to correct for all violations that do not constitute SNC discovered during the course of an inspection that are not resolved before the conclusion of the inspection. An NOC will allow the responsible party a reasonable time in which to resolve the violation. The time allowed will not exceed 180 calendar days from date of issuance of the NOC or as otherwise specified in an applicable permit. If the violation is not corrected within the time allowed by the NOC, ADEQ will issue an NOV. If the violation is corrected within the time allowed by the NOC, ADEQ will issue a closure letter to the responsible party and forgo escalated enforcement (including seeking civil penalties).
Boilerplate: The boilerplate Notice of Opportunity to Correct Deficiencies can be found as
Appendix B15. Boilerplate: The boilerplate NOC Closure Letter can be found as Appendix B14. NOTICE OF VIOLATION (NOV) An NOV is an informal compliance assurance tool used by ADEQ to put a responsible party (such as a facility owner or operator) on notice that the Department believes a significant violation of environmental law has occurred. It describes the facts known to ADEQ at the time of issuance and cites the laws or rules that ADEQ believes the party has violated. An NOV provides the responsible party an opportunity to do any of the following before ADEQ takes formal enforcement action: (1) meet with ADEQ and discuss the facts surrounding the violation, (2) demonstrate to ADEQ that no violation has occurred, or (3) document that the violation has been corrected. Unlike in an NOC, ADEQ will explicitly reserve the right to seek a civil penalty regardless of whether the responsible party achieves or demonstrates compliance. ? For all violations meeting the definition of Significant Non-Compliance (SNC), staff will prepare an NOV for approval by the appropriate Division Director or Regional Director. ? If ADEQ discovers both violations that constitute SNC and violations that do not constitute SNC during the course of an inspection, staff will forgo affording an opportunity to correct deficiencies and prepare for approval an NOV addressing all alleged violations, differentiating between those violations that constitute SNC and those that do not constitute SNC violations in the notice. ? An NOV will provide the responsible party a reasonable time to resolve the violation. The time allowed should not exceed 90 calendar days, but under no circumstances will the time allowed be greater than 120 days from the date of issuance of the NOV. ? If the responsible party fails to adequately document resolution of the violation within the time provided by the NOV, ADEQ will initiate formal enforcement. ? If the violation is resolved within the time provided by the NOV and the violation does not constitute PNC, ADEQ will issue a closure letter to the responsible party and forgo the initiation of formal enforcement (including seeking civil penalties).
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Boilerplate: The boilerplate Notice of Violation cover letter language can be found as Boilerplate: Boilerplate: Boilerplate:
Boilerplate: Boilerplate: Boilerplate:
Appendix B21. The boilerplate administrative order Notice of Violation cover letter language can be found as Appendix B26. The boilerplate Notice of Violation can be found as Appendix B18. The boilerplate Notice of Violation alleging both violations that constitute SNC and violations that do not constitute SNC (a.k.a. "other" violations) can be found as Appendix B17. The boilerplate Notice of Violation alleging water quality permit self-monitoring violations can be found as Appendix B16. The boilerplate NOV Closure Letter (reserving further action) can be found as Appendix B20. The boilerplate NOV Closure Letter (with no further action) can be found as Appendix B19.
NOTICE OF ENVIRONMENTAL NUISANCE (NEN) An NEN is an informal compliance assurance tool used by ADEQ to put a responsible party, such as a facility owner or operator, on notice that the Department believes an environmental nuisance condition exists. It describes the facts known to ADEQ at the time of issuance and cites the environmental nuisance provision that ADEQ believes applies. An NEN provides the responsible party an opportunity to do any of the following before ADEQ takes formal action: (1) meet with ADEQ and discuss the facts surrounding the nuisance, (2) demonstrate to ADEQ that no nuisance exists, or (3) document that the nuisance has been abated. ? For all environmental nuisance conditions, staff will prepare an NEN for approval by the appropriate Division Director or Regional Director. ? Because environmental nuisances are limited to those conditions that are not otherwise su bj ect to regulation by ADEQ, ADEQ will not issue an NEN for a situation covered by a violation listed as major or minor in an appendix.2 ? An NEN will provide the responsible party a reasonable time to resolve the nuisance condition. The time allowed should not exceed 90 calendar days, but under no circumstances will the time allowed be greater than 120 days from the date of issuance of the NEN. ? If the responsible party fails to adequately document resolution of the nuisance condition within the time provided by the NEN, ADEQ will initiate formal enforcement. ? If the nuisance condition is resolved within the time provided by the NEN, ADEQ will issue a closure letter to the responsible party and forgo the initiation of formal enforcement.
Appendix:
The Environmental Nuisance Condition List can be found as Appendix L24.
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Boilerplate: The boilerplate Notice of Environmental Nuisance Cover Letter Language can be
found as Appendix B37. Boilerplate: The boilerplate Notice of Environmental Nuisance can be found as Appendix B36. Boilerplate: The boilerplate NEN Closure Letter can be found as Appendix B38.
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CHAPTER 6: FORMAL ENFORCEMENT TOOLS ADEQ will rarely initiate enforcement with a formal enforcement action. As a result, the formal enforcement tools described below are reserved for those violations that are particularly egregious, or for those circumstances where the responsible party is unwilling or unable to resolve a violation in a timely manner after receiving an informal compliance assurance response from ADEQ. Although most ADEQ programs share a common set of formal enforcement tools, there are some minor differences. For example, some programs have the ability to assess civil administrative penalties or issue administrative orders requiring compliance, while others do not. This chapter describes the various formal enforcement tools available to ADEQ along with how and when they should be used.
Appendix:
A table of Arizona's administrative, civil, and criminal environmental enforcement authorities can be found as Appendix M2.
CONSENT ORDER A Consent Order, otherwise known as a compliance order (or abatement order) on consent, is a bilateral administrative order issued with the complete written agreement of the responsible party and ADEQ. A Consent Order is ADEQ's preferred formal enforcement tool for requiring compliance because it benefits both the responsible party and ADEQ. The responsible party has the opportunity to provide input into the terms of the order while ADEQ gets the responsible party's waiver of its right to appeal the order. To establish reasonable expectations, ADEQ has drafted guidelines that govern the process and time frames for negotiating Consent Orders (the Consent Order Negotiation Guidelines). ADEQ will attempt to negotiate a bilateral Consent Order when both of the following conditions are met: ? The responsible party has failed to meet a deadline within an NOV, or the violation cannot be resolved within 120 calendar days; and ? The circumstances of the violation do not warrant the seeking of civil penalties (i.e., the violations do not constitute Penalty Non-Compliance (PNC)).1
Boilerplate: The boilerplate Consent Order can be found as Appendix B10. Boilerplate: The boilerplate Consent Order with Civil Administrative Penalty (drinking water
violations only) can be found as Appendix B35. Boilerplate: The boilerplate Termination of Consent Order can be found as Appendix B25. Guidance: The Consent Order Negotiation Guidelines can be found as Appendix G1.
A D E Q may ch o o s e to negotiate a Co n s e n t O r d e r for PNC violations if it is likely that the time need e d to r e s o l v e the penalty portion of the case will slow down the implementation of a remedy necessary to reduce the i m p a c t of the violation. ADEQ will also attempt to negotiate a Consent Order with Civil Administrative Penalty for t h e assessment of civil adm i n i s t r a t i v e penalties for drinking water violations. A D E Q Co m p l i a n c e & En f o r c e m e n t Ha n d b o o k - Version: 7/1/02 Page 6-1
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COMPLIANCE ORDER/ABATEMENT ORDER A Compliance Order (or Abatement Order) is an administrative order issued unilaterally by ADEQ without input from the responsible party. ADEQ will issue a Compliance Order only when attempts to resolve the violation through informal compliance assurance and negotiation of a Consent Order are unsuccessful or unwarranted due to the time sensitive nature of the violation. Unlike under a Consent Order, the responsible party does not have an opportunity to comment on the corrective actions or the time frames for completing the corrective actions. To challenge a compliance order, the responsible party must submit a request to ADEQ for an administrative appeal after receiving the Order. If an appeal is not requested, a Compliance Order becomes eff ect ive and enforceable in superior court 30 days after it is received by the responsible party. If a hearing is requested it will be held before Arizona's Office of Administrative Hearings (OAH). Following the hearing, ADEQ will review the recommended decision from the OAH administrative law judge and issue a final decision to validate, invalidate or modify the original Order. Once final, the Order becomes effective and enforceable in civil court. Except for Orders issued for environmental nuisances, drinking water violations, recycling violations and pollution prevention violations, a violation of an effective Order is subject to civil penalties. ADEQ will issue a unilateral Compliance Order when all of the following conditions are met: ? The responsible party has failed to meet a deadline within an NOV ? The circumstances of the violation do not warrant seeking civil penalties (i.e., the violations do not constitute Penalty Non-Compliance (PNC)).2 ? ADEQ has been unsuccessful in its attempt to negotiate a Consent Order (or it is otherwise unlikely that the Consent Order will be finalized within 45 days of the initiation of negotiations)
Boilerplate: The boilerplate Compliance/Abatement Order can be found as Appendix B8. Boilerplate: The boilerplate Termination of Compliance/Abatement Order can be found as Policy:
Appendix B25. The Administrative Hearing Procedures for Delegated Programs Policy can be found as Appendix P1.
COMPLIANCE ORDER WITH CIVIL ADMINISTRATIVE PENALTY (Drinking Water) Pursuant to A.R.S. ? 49-354(C), ADEQ may issue a compliance order imposing a civil administrative penalty for drinking water violations. ADEQ will normally attempt to negotiate a Consent Order with administrative penalties using the same procedures described in the Consent Order Negotiation Guidelines. The only major difference being that the Consent Order will include an administrative penalty for those violations constituting Penalty Non-Compliance. To challenge a unilateral administrative penalty order, the responsible party must submit a request to ADEQ for an administrative appeal after receiving the Order. If an appeal is not requested, the administrative penalty order becomes effective and enforceable in superior court 30 days after it
A D E Q may issue a Co m p l i a n c e O r d e r with Civil Adm i n i s t r a t i v e P e n a l t y for the assessmen t of civil a d m i n i s t r a t i v e penalties associated with drinking water violations. A D E Q Co m p l i a n c e & En f o r c e m e n t Ha n d b o o k - Version: 7/1/02 Page 6-2
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is received by the responsible party. If a hearing is requested it will be held before Arizona's Office of Administrative Hearings (OAH). Following the hearing, ADEQ will review the recommended decision from the OAH administrative law judge and issue a final decision to validate, invalidate or modify the original Order. Once final, the Order becomes effective and enforceable in civil court. The Arizona Revised Statutes not only establish the maximum civil administrative penalties that may be imposed, but also prescribe the factors that must be used in determining the amount of the penalty. The process of establishing the penalty is outlined in Chapter 8 (Penalty Determinations).
Boilerplate: The boilerplate Compliance Order with Civil Administrative Penalty can be found Guidance:
as Appendix B2. The Consent Order Negotiation Guidelines can be found as Appendix G1.
ORDER ASSESSING A CIVIL PENALTY (Hazardous Waste) Pursuant to A.R.S. ? 49-923(B), ADEQ may issue an administrative order assessing a civil penalty of not more than $1,000 per day for each day of continued non-compliance with a Compliance Order (or Consent Order) issued pursuant to A.R.S. ? 49-923(A). ADEQ will assess a civil penalty for non-compliance with a Compliance Order (or Consent Order) issued pursuant to A.R.S. ? 49-923(A) and for violations of the Arizona Hazardous Waste Management Act based upon the following: If there is a prior agreement with the responsible party (i.e., a Consent Order with stipulated penalties): The penalties to be assessed for non-compliance with a Compliance Order issued with the consent of the responsible party (a.k.a., a Consent Order) will be equal to the stipulated penalty provisions within the Consent Order. Because these penalties have already been negotiated and agreed upon by the responsible party, ADEQ will not engage in further negotiations before is su in g an administrative Order Assessing a Civil Penalty. If there is no prior agreement with the responsible party (i.e., ADEQ has issued a compliance order or entered into a Consent Order without stipulated penalties): ADEQ will issue an Order Assessing a Civil Penalty for an amount based upon the seriousness of th e violation, good faith efforts, economic benefit, and ability to pay.3 To challenge an Order Assessing a Civil Penalty, the responsible party must submit a request to ADEQ for an administrative appeal after receiving the Order. If an appeal is not requested, the Order Assessing a Civil Penalty becomes effective and enforceable in superior court 30 days after it is received by the responsible party. If a hearing is requested it will be held before Arizona's Office of Administrative Hearings (OAH). Following the hearing, ADEQ will review the recommended
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S e e Chapter 8 (Penalty Determinations) for more d e t a i l e d guidance o n determining an appropriate civil adm inistrative p enalty. A D E Q Co m p l i a n c e & En f o r c e m e n t Ha n d b o o k - Version: 7/1/02 Page 6-3
decision from the OAH administrative law judge and issue a final decision to validate, invalidate or modify the original Order. Once final, the Order becomes effective and enforceable in civil court.
Boilerplate: The boilerplate Order Assessing a Civil Penalty can be found as Appendix B6. Guidance: The process for determining a hazardous waste administrative civil penalty can be
found as Appendix G2.
LICENSE SUSPENSION/REVOCATION In general, ADEQ will suspend or revoke a license due to non-compliance only after all other attempts to compel compliance have failed.4 One exception to this general rule applies to those programs without administrative order authority.5 For those programs that do not have administrative order authority, ADEQ may suspend or revoke a license if violation of the license is not resolved through the issuance of a Notice of Violation. ADEQ will normally attempt to negotiate a permit revocation/suspension with the consent of the responsible party using the same procedures described in the Consent Order Negotiation Guidelines. If these attempts are unsuccessful, or unwarranted given the circumstances, ADEQ will issue a suspension or revocation unilaterally. The length of the suspension will be determined using the factors described in Chapter 8 (Penalty Determinations) of this handbook. To challenge a license suspension or revocation, the responsible party must submit a request to ADEQ for an administrative appeal after receiving the suspension or revocation. If an appeal is not requested, the suspension or revocation becomes effective and enforceable in superior court 30 days after it is received by the responsible party. If a hearing is requested it will be held before Arizona's Office of Administrative Hearings (OAH). Following the hearing, ADEQ will review the recommended decision from the OAH administrative law judge and issue a final decision to validate, invalidate or modify the original suspension or revocation. Once final, the suspension or revocation becomes effective and enforceable in civil court.
Boilerplate: The boilerplate Suspension of Licence can be found as Appendix B13. Boilerplate: The boilerplate Revocation of Licence can be found as Appendix B12.
CIVIL REFERRAL While most of the administrative enforcement tools described above do not necessarily require a referral to the Attorney General's Office prior to taking action, civil enforcement does. Pursuant to most of Arizona's environmental enforcement provisions, the Arizona Attorney General's
P u r s ua n t to A.R.S. ? 41-1001(10), "License" includes the whole or part of any agency permit, certificate, a p p r o v a l , registration, charter or sim i l a r form of permission required by law. S e e Appendix M2 for a table of ADEQ enforcement authorities which includes a list of those programs w i t h administrative ord e r authority. A D E Q Co m p l i a n c e & En f o r c e m e n t Ha n d b o o k - Version: 7/1/02 Page 6-4
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Office must file a civil action seeking penalties when requested by ADEQ.6 The process of making such a request is described below. Because of the time and effort necessary to make a productive civil referral, ADEQ will exercise a great deal of discretion when making a civil referral. ADEQ will make a referral to the Attorney General's Office for the filing of a civil complaint (and possibly a concurrent settlement agreement) under any of the following circumstances: ? The violation is PNC ? The responsible party has violated a Compliance Order ? The responsible party has violated a Consent Order ? The violation poses an immediate and substantial threat to human health or the environment. There are several types of civil referrals that can be made by ADEQ, each of which is described below. Independent of the type of referral, ADEQ must formally request the assignment of an Assistant Attorney General via a formal memorandum and a Case Development Memorandum (CDM) which describes the allegations in detail. Although an attorney request memorandum and CDM must be drafted for every civil referral, the level of detail and timing of the referral will be based upon the type of referral being made. Temporary Restraining Order/Preliminary Injunction ADEQ will make a referral to the Attorney General's office for seeking a temporary restraining order or preliminary injunction only under the following circumstances: ? The violation is creating an immediate and substantial risk to human health and/or the environment; and ? It is unlikely that the violation can be resolved in a timely manner through an NOV or Administrative Order. A referral for the filing of a temporary restraining order or preliminary injunction must be made by a Request for Assignment of an Assistant Attorney General memorandum. A Case Development Memorandum For Filing a Civil Complaint does not have to accompany the request, but must be completed within 60 calendar days of the request.
Boilerplate: The boilerplate Request for Assignment of an Assistant Attorney General can be Boilerplate: The boilerplate Case Development Memorandum for Filing a Civil Complaint can
found as Appendix B24.
be found as Appendix B3.
Permanent Injunction/Civil Penalty Because of ADEQ's strong preference for negotiated settlements, ADEQ will rarely seek the imposition of a permanent injunction or civil penalty without first attempting to negotiate a civil settlement agreement with the responsible party. ADEQ will make referrals to the Attorney
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S e e A.R.S. ?? 49-262(C), 49-354(G), 49-462, 49-768, 49-783(B), 49-811(B), 49-861(C), and 49-924(B). Page 6-5
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General's Office, though, for those violations that constitute Penalty Non-Compliance (PNC).7 The decision to make a referral to the Attorney General's Office for the filing of a civil complaint, without also attempting to file a settlement agreement, will be made on a case-by-case basis. A referral for the filing of a civil complaint seeking the imposition of a permanent injunction or civil penalty will be made by a Request for Assignment of an Assistant Attorney General memorandum accompanied by a Case Development Memorandum for Filing a Civil Complaint.
Boilerplate: The boilerplate Request for Assignment of an Assistant Attorney General can be
found as Appendix B24. Boilerplate: The boilerplate Case Development Memorandum for Filing a Civil Complaint can be found as Appendix B3. Consent Judgment/Consent Decree A Consent Judgment (or Consent Decree) is a negotiated settlement of a civil complaint. It is ADEQ's preferred method of resolving Penalty Non-Compliance and involves the filing of both a civil complaint and a signed, written settlement agreement between the parties. Once approved by the court, a Consent Judgment/Decree becomes effective and enforceable in court. A referral to the Attorney General's Office for the negotiation of a permanent injunction or civil penalty will be made through the creation of a Request for Assignment of an Assistant Attorney General for Negotiating a Civil Settlement that will serve both as the Request for Assignment of an Assistant Attorney General and the Case Development Memorandum. If attempts to negotiate a civil settlement are unsuccessful, a Case Development Memorandum for Filing a Civil Complaint must be approved and sent to the Attorney General's Office. Negotiating a Civil Settlement can be found as Appendix B24. Boilerplate: The boilerplate Case Development Memorandum for Filing a Civil Complaint can be found as Appendix B3. CRIMINAL REFERRAL Although the State's authority for prosecution of environmental crimes lies exclusively with the Arizona Attorney General's Office, ADEQ still plays an important role. ADEQ regularly gathers evidence used in the identification and prosecution of environmental crimes. As a general rule, ADEQ will refer any and all potential criminal acts to the Attorney General's Office for review. ADEQ plays no part, though, in the decision as to whether or not a referral will be pursued. The following acts constitute a crime, and thus will be referred to the Attorney General's Office via a Criminal Information Transmittal Memorandum: ? Performance of a prohibited act with criminal negligence
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Boilerplate: The boilerplate Request for Assignment of an Assistant Attorney General for
S e e Chapter 4 (Violation Categories) for guidance on determining Penalty Non-Compliance. Page 6-6
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Knowing performance of a prohibited act Reckless performance of a prohibited act Knowing or reckless manifestation of an extreme indifference for human life in performance of a prohibited act Fraud against ADEQ
If there is any doubt about whether an environmental crime has been committed, a referral should be made.
Boilerplate: The boilerplate Criminal Information Transmittal Memorandum can be found as Policy:
Appendix B11. The Criminal Information Transmittal Policy can be found as Appendix P6.
BOARD OF TECHNICAL REGISTRATION REFERRAL Because ADEQ has limited resources, it places a great deal of trust in the professional service community to promote and facilitate compliance with environmental requirements. As a result, if ADEQ has reason to believe that a person has violated a Board of Technical Registration (BTR) requirement when dealing with ADEQ (i.e., when submitting an engineering or geological plan, report, or license application) ADEQ may refer the matter to the BTR.8 As a general rule, ADEQ will only refer registrants to the BTR for clear breaches of professional condu ct or practice which includes any of the following: ? Submittal of false or misleading certifications ? Attempting to defraud the State ? Attemp ti ng to commit bribery ? Clearly practicing without a registration Unless compelling circumstances exist, ADEQ will generally not refer substandard or poor quality work to the BTR. Furthermore, ADEQ will refrain from making a referral merely for disputes arising out of differences in professional judgement between the applicant (registrant) and ADEQ. Under these circumstances, ADEQ's preferred course of action will be to use its authorities to deny applications or withhold the approvals sought.
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A.A .C.
T h e B T R req u i r e m e n t s can be found in Title 32, Chapter 1, of the A.R.S., and Title 4, Chapter 30 of the
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CHAPTER 7: ENFORCEMENT ESCALATION PROCEDURES Except for violations that do not constitute SNC identified and corrected during the course of an inspection,1 ADEQ will respond to every identified violation. Under normal circumstances, ADEQ will initially address non-compliance through the use of an informal compliance assurance tool. As a result, ADEQ will either provide an opportunity to correct (NOC) or issue a Notice of Violation (NOV) for each violation identified. There is no requirement, though, that ADEQ first use an informal compliance assurance tool before initiating formal enforcement. (i.e., before issuing an administrative order, or seeking injunctive relief and civil penalties through a referral to the Attorney General). Furthermore, even if a violation is resolved under an NOV, ADEQ may pursue civil penalties for those violations that constitute Penalty Non-Compliance (PNC). Although ADEQ has adopted formal policies (listed below) for dealing with several specific types of violations, the procedures described in this chapter generally apply to all enforcement actions taken by the agency. Although intended to provide consistency, these procedures are not intended to limit the enforcement discretion of ADEQ. Case-specific deviations from these procedures are permitted with prior approval from the appropriate ADEQ division director. Failure to follow these procedures will not prevent ADEQ from bringing an enforcement action that is otherwise appropriate to the violation.
Policy: Policy: Policy:
The Enforcement of Annual Emissions Inventory Questionnaire Policy can be found as Appendix P14. The Water Quality Compliance Enforcement Escalation Policy can be found as Appendix P15. The Reporting Requirements for Public Water Systems Policy can be found as Appendix P17.
The following steps will be taken once a violation has been identified, regardless of how the violation has been identified and unless a more specific policy applies: STEP 1: Classify the Violation as Major or Minor Clas sifi catio n of the violation as major or minor will be based upon the following: ? For violations of statutes, rules, or permit conditions based upon statutes or rules, classification of the violation as major or minor will be based upon the appropriate Appendix to this handbook.2
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AD E Q will note in the inspe c t i o n report and in the ICE datab a s e tho s e violations that do no t constitute S N C discovered and corrected during the course of an inspection. I f a violation not listed in an appendix is discovered during the course of an inspection or investigation, s t a f f must provide the Director with a recommend e d category for listing. The same app r o v a l is required for a c h a n g e in a category for those violations already listed in an appendix to this handbook. A D E Q Co m p l i a n c e & En f o r c e m e n t Ha n d b o o k - Version: 12/1/03 Page 7-1
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?
For violations of permit conditions not listed in an appendix, classification will be based upon the appropriate notation on the inspection checklist for the facility. 3
Regardless of the classification as major or minor, potential criminal acts should always be referred to the Attorney General's Office as soon as possible.
Appendix:
Program M inor V i o l a ti o n Ap pen dix L2 -L22 L6 -L8 --L10 L12 L14 L16 L18 L19 M ajor V i o l a ti o n Ap pen dix L1 L3 L23 L5 L4 L7 L21 L25 L9 L11 L13 L15 L17 L20
Air Q uality A s b e st o s NESHAP B i o s o li d s D r i n k i ng Water D r i n k i n g Water M o n i t o r i n g & Reporting Ha zard ous W aste L U S T Enforcement O p e r a t o r Certification R e u s e of Reclaimed Water Solid W aste U S T Inspections & Compliance V e h i c l e Emission Inspections W a t e r Pollution Control W a t e r Q u a l i t y Permit
ICE:
For all recommended cases (i.e., instances where violations have been discovered during the course of an inspection), the appropriate violations must be entered in the Case Screen.
I f there has not been a previous determination as to whether violation of the condition is a major violation, s t a ff must provide the appropriate Division Director or Regional Director with a recommendation as to whether v i o l a t i o n of the condition po s e s a reasonable p r o b a b i l i t y of material ha r m to a n y person, the public health, safety, w e l fa r e or the environment or the inability to perform such an assessment as a result of the violation. Once the final d e t e rm i n a ti o n has been made by the Division Director or Regional Director, an appropriate notation must be made o n the facility's inspection checklist. The sam e process applies to sugge s t e d changes to inspection checklist notations. A D E Q Co m p l i a n c e & En f o r c e m e n t Ha n d b o o k - Version: 12/1/03 Page 7-2
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STEP 2: Determine Whether the Violation is Significant Non-Compliance (SNC) A violation is SNC, if it is any of the following: ? A major violation ? A minor violation committed intentionally ? A minor violation that has continued beyond a deadline set within a Notice of Opportunity to Correct (i.e., the responsible party failed to document compliance as noted in the Notice of Opportunity to Correct) ? A violation previously noted or addressed in an NOC or NOV within the past two years; ? A violation previously addressed in an administrative order or civil complaint within the past five years ? A violation of a Compliance Order, Consent Order, Consent Judgment or Consent Decree STEP 3: Prepare the Appropriate Informal Compliance Assurance Notice The ICE database has been developed to automatically generate the appropriate informal compl iance assurance notice based upon the following: If the violation is SNC (regardless of whether the violation is corrected before ADEQ leaves the site): Staff will prepare a Notice of Violation (NOV) and cover letter for approval by the appropriate Division Director or Regional Director.
Boilerplate: The boilerplate Notice of Violation cover letter language can be found as Boilerplate: Boilerplate: Boilerplate: Boilerplate:
Appendix B21. The boilerplate administrative order Notice of Violation cover letter language can be found as Appendix B26. The boilerplate Notice of Violation can be found as Appendix B18. The boilerplate Notice of Violation alleging water quality permit self-monitoring violations can be found as Appendix B16. The boilerplate Notice of Violation alleging failure to submit a self-monitoring report form for a water quality permit can be found as Appendix B34.
If both violations constituting SNC and violations not constituting SNC violations are discovered (regardless of whether the violation is corrected before ADEQ leaves the site): Staff will prepare a Notice of Violation (NOV) and cover letter for approval by the appropriate Division Director or Regional Director.
Boilerplate: The boilerplate Notice of Violation cover letter language can be found as
Appendix B21. Boilerplate: The boilerplate administrative order Notice of Violation cover letter language can be found as Appendix B26. Boilerplate: The boilerplate Notice of Violation alleging both violations constituting SNC and violations not constituting SNC (a.k.a. "other" violations) can be found as Appendix B17.
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If the violation is not SNC and was not corrected prior to ADEQ leaving the site: ADEQ will provide an opportunity to correct the deficiencies through the issuance of a letter (an NOC generated automatically by the ICE database).4 The NOC will be sent certified mail, return receipt requested.
Boilerplate: The boilerplate Notice of Opportunity to Correct Deficiencies can be found as ICE:
Appendix B15. Once sent, NOC Sent to RP must be entered as an action in the Case Screen. Once received by the responsible party, NOC Received by RP must be entered as an action in the Case Screen.
STEP 4: If SNC, Seek Approval of Division Director or Regional Director for Issuance of NOV All NOVs must be submitted to the Division Director or Regional Director for approval before issuance. The Division Director or Regional Director has the discretion to change an NOV to an NOC based on the specific circumstances surrounding the violation. This discretion may be severely limited, though, in those federal programs for which ADEQ has the primary enforcement responsibility.
ICE:
1)
2)
When the draft NOV is submitted to the Division Director or Regional Director for review and approval Notice Decision Sent to Div. Dir. For Review must be entered as an action in the Cases Screen. Once a decision has been made, Division Director Notice Decision Received must be entered as an action in the Cases Screen.
If the Division Director or Regional Director approves issuance of the NOV ? The NOV and cover letter will be sent to the responsible party via certified mail, return receipt requested. ? If for a drinking water system, wastewater treatment or disposal facility, or solid waste disposal facility, a copy of the NOV must be sent to the appropriate county official(s) and to any affected environmental justice community.5
Policy: ICE:
The Notification Policy For Local Governmental Agencies can be found as Appendix P11. 1) Once sent, NOV Sent to RP must be entered as an action in the Case Screen. 2) Once received by the responsible party, NOV Received by RP must be entered as an action in the Case Screen.
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I f the violation constitutes a caution level exceedance for a water permit, ADEQ will issue a caution letter.
A list of appropriate county officials and environmental justice communities will be maintained by the O f f i c e of Special C o u n s e l . ADE Q Co m p l i a n c e & En f o r c e m e n t Ha n d b o o k - Version: 12/1/03 Page 7-4
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If the Division Director or Regional Director does not approve issuance of the NOV ADEQ will provide an opportunity to correct the deficiencies through the issuance of a letter (an NOC generated automatically by the ICE database).6 The NOC will be sent certified mail, return receipt requested.
Boilerplate: The boilerplate Notice of Opportunity to Correct Deficiencies can be found as ICE:
Appendix B15. Once sent, NOC Sent to RP must be entered as an action in the Case Screen. Once received by the responsible party, NOC Received by RP must be entered as an action in the Case Screen.
STEP 5: Determine Whether the Violation is PNC Although ADEQ will consider all of the following in determining whether a violation is PNC, a violation of statute, rule, administrative order, or permit meeting any of the following criteria may constitute PNC: ? The violation was intended to result in, or actually resulted in, significant cost savings or profits to the responsible party ? The responsible party engaged in willful or negligent conduct leading to the violation. (e.g., the lack of provisions for detecting or preventing the violation) ? The responsible party previously received a NOV or administrative order for the same violation within the past two years ? ADEQ previously filed a civil complaint against the responsible party. ? The violation resulted in actual harm, or substantial risk of harm, to human health or the environment as determined using the following factors: < An actual release < Violation of a water quality standard7 < Exceedance of a soil remediation standard8 < Severe mismanagement of a pollutant < The amount of the pollutant involved < The toxicity of the pollutant involved < The proximity of biological/human receptors or sensitive environmental media such as a drinking water supply, populated area or surface water < Failure to notify persons potentially affected by the violation as required by law
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I f the violation constitutes a caution level exceedance for a water permit, ADEQ will issue a caution letter. A . A . C . R18-11-101 et seq. A . A . C . R18-7-101 et seq. Page 7-5
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STEP 6: Determine the Appropriate Follow-Up Enforcement Activity The appropriate follow-up enforcement activity to be taken by ADEQ will be based upon the nature of the violation and the responsible party's response to ADEQ's identification of the violation. If the responsible party has been issued an NOV (for a violation that is not PNC) and has adequately documented compliance ? Staff will prepare for the appropriate Division Director or Regional Director, a letter to the facility closing the NOV and stating that ADEQ will take no further action ? If approved by the Division Director or Regional Director, ADEQ will send the NOV Closure Letter (with no further action), administratively close the enforcement case opened by the issuance of the NOV and cease sending agency action update letters
Boilerplate: The boilerplate NOV Closure Letter (with no further action) can be found as ICE:
Appendix B19. 1) Upon receipt of the compliance documentation, NOV Response Received from RP must be entered as an action and the date achieved must be entered for each compliance documentation requirement in the Case Screen. 2) Once permission to close has been granted by the appropriate Division Director or Regional Director, Perm. To Close Granted by Div. Director must be entered in the Cases Screen. 2) Once the closure letter has been sent, NOV Closure Letter Sent to RP (case closu re) must be entered as actions in the Case Screen.
If the responsible party has been issued an NOV (for a violation that is PNC) and has adequately documented compliance ? ADEQ will issue a letter to the facility acknowledging documentation of compliance, but reserving the possibility of further action. ? If the violation was discovered during the course of an inspection, ADEQ will continue to send agency action update letters until either the filing of a civil complaint or sending a letter stating that ADEQ will take no further action. ? When negotiating a settlement penalty with the responsible party, ADEQ will take the timeliness of the responsible party's corrective action into consideration (in addition to the other factors described in Chapter 8 (Penalty Determinations)).
Boilerplate: The boilerplate Compliance Documented Letter (reserving further action) can be ICE:
found as Appendix B20. 1) Upon receipt of the compliance documentation, NOV Response Received from RP must be entered as an action and the date achieved must be entered for each compliance documentation requirement in the Case Screen.
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2)
Once the closure letter has been sent, Compliance Document Letter Sent to RP must be entered as an action in the Case Screen.
If the responsible party has been issued an NOV (for a violation that is not PNC) and has not adeq uat ely documented compliance within the deadlines set in the NOV: ? Immediately upon discovery of a missed NOV deadline, an ADEQ compliance officer must contact the responsible party via telephone to discuss the responsible party's options for demonstrating compliance. THIS CONVERSATION MUST BE DOCUMENTED IN THE FACILITY FILE AND THE ICE DATABASE. The ADEQ compliance officer will explain that a Consent Order must be signed within 45 days to avoid the issuance of a unilateral Compliance Order by ADEQ. The employee should also point out that if the alleged violation is resolved within the next 45 days, there will be no need for a Consent Order or Compliance Order. The compliance officer must make it clear, though, that it is at the responsible party's peril to forgo negotiation of a Consent Order in favor of attempting to achieve compliance within 45 days, because at the end of the 45 day period one of the following three things must have occurred: 1) ADEQ must have acknowledged in writing that the Documenting Compliance provisions under the NOV had been met (i.e., the alleged violation has been satisfactorily resolved); 2) ADEQ must have entered into a Consent Order with the responsible party; or 3) ADEQ must have issued a Compliance Order requiring compliance. ? After documenting the telephone conversation ADEQ will send an NOV Reminder Letter to the responsible party certified mail, return receipt requested, with a proposed meeting agenda, a copy of the Consent Order Negotiation Guidelines and the boilerplate Consent Order attached. ? The Director's approval of a draft Consent Order must be obtained via completion and routing of the Enforcement Action/Settlement Approval form prior to sending the draft Consent Order to the responsible party. The draft Consent Order should be attached to the form. ? If the violation was discovered during the course of an inspection, ADEQ will continue to send agency update letters until the entry of a Consent Order or issuance of a Compliance Order. ? ADEQ will then proceed to either negotiate a Consent Order in accordance with the Consent Order Negotiation Guidelines, or issue a Compliance (or Abatement) Order. ? If for a drinking water system, wastewater treatment or disposal facility, or solid waste disposal facility, a copy of the Consent Order or Compliance Order must be sent to the appropriate county official(s) and if deemed appropriate by the appropriate section manager, to any affected environmental justice community. ? Press materials may be released with the issuance of Consent Order or Compliance (or Abatement) Order if deemed appropriate by the appropriate division director.
Boilerplate: The boilerplate NOV Reminder Letter can be found as Appendix B22.
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Boilerplate: The boilerplate Enforcement Action/Settlement Approval form can be found as Policy: Policy: ICE:
Appendix B39. The Notification Policy For Local Governmental Agencies can be found as Appendix P11. The Compliance and Enforcement Press Policy can be found as Appendix P16. 1) Immediately after a missed NOV deadline, NOV Deadline Missed by RP must be entered as an action in the Case Screen. 2) After the telephone conversation with the RP, NOV Follow-up Phone Call w/RP must be entered as an action in the Case Screen. 3) After sending the reminder letter, NOV Reminder Letter Sent to RP must be entered as an action in the Case Screen. Once received by the responsible party, NOV Reminder Letter Received by RP must be entered as an action in the Case Screen. 4) Once the Enforcement Action/Settlement Approval form has been submitted to the Director, Req To Pursue Esc. Enforce. Sent to Director must be entered as an action in the Case Screen. 5) If approval to proceed has been obtained from the Director, Perm. Granted for Esc. Enforce Frm Director must be entered as an action in the Case Screen.
If the responsible party has been issued an NOV (for a violation that is PNC) and has not adeq uat ely documented compliance within the deadlines set in the NOV: ? If the violation is not causing an immediate and significant threat to public health or the environment, ADEQ will refer the case to the Attorney General's Office via a Case Development Memorandum for Negotiating a Civil Settlement . ? If the violation is causing an immediate and significant threat to public health or the environment, ADEQ will request a temporary restraining order or preliminary injunction via a Request for Assignment of Assistant Attorney General to be followed by a Case Development Memorandum for Filing of a Civil Complaint. ? If the violation was discovered during the course of an inspection, ADEQ will continue to send agency update letters until the filing of a civil complaint. ? If for a drinking water system, wastewater treatment or disposal facility, or solid waste disposal facility, notice of the filing of a civil complaint must be sent to the appropriate county official(s) and if deemed appropriate, to any affected environmental justice community ? Civil enforcement actions should be publicized using at least a press release
Boilerplate: The boilerplate Request for Assignment of an Assistant Attorney General can be
found as Appendix B24. Boilerplate: The boilerplate Case Development Memorandum for Filing a Civil Complaint can be found as Appendix B3. Boilerplate: The boilerplate Case Development Memorandum for Negotiating a Civil Settlement can be found as Appendix B4.
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Policy: Policy: ICE:
The Notification Policy For Local Governmental Agencies can be found as Appendix P11. The Compliance and Enforcement Press Policy can be found as Appendix P16. 1) Immediately after a missed NOV deadline, NOV Deadline Missed by RP must be entered as an action in the Case Screen. 2) Once the CDM has been signed by the agency's compliance and enforcement coordinator, Case Development Memorandum Completed must be entered in the Case Screen. 3) Once an Assistant Attorney General has been assigned, Assistant Attorney General Assigned must be entered as an action and the name of the attorney must be entered as additional information in the Case Screen.
If the responsible party has been issued an NOC and has adequately documented compliance: ? ADEQ will issue a letter to the responsible party closing the NOC. ? ADEQ will cease sending agency action update letters.
Boilerplate: The boilerplate NOC Closure Letter can be found as Appendix B14. ICE: 1) Upon receipt of the compliance documentation, NOC Response Received
2)
from RP must be entered as an action in the Case screen, and the date achieved must be entered for each compliance documentation requirement. Once the closure letter has been sent, NOC Closure Letter Sent to RP must be entered as an action in the Case Screen.
If the responsible party has been issued an NOC and has not adequately documented compliance: Within 180 days of the original inspection date, ADEQ must either reinspect the facility or otherwise follow up to determine whether the facility has corrected the violation. ? If the violation has been corrected, ADEQ will issue a letter to the responsible party closing the NOC. ? If the violation has not been corrected, staff will prepare an NOV and cover letter for approval by the appropriate Division Director or Regional Director. This will result in another determination of the appropriate follow-up activity based upon the responsible party's response to the NOV. ? If the responsible party has submitted an inadequate response to ADEQ, ADEQ will send a letter to the responsible party explaining the inadequacy of the response.
ICE:
1) 2) 3)
Upon receipt of a response from the responsible party, NOC Response Received from RP must be entered as an action in the Case Screen. Once sent, NOC Response Letter Sent to RP must be entered as an action in the Case Screen Immediately after a NOC missed deadline, NOC Deadline Missed must be entered and NOC Follow-up Inspection to be Conducted must be entered as actions in the Case Screen.
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If the responsible party has been issued a Compliance Order, Abatement Order or entered into a Consent Order and has violated the Order: ? Staff will prepare a Notice of Violation (NOV) and cover letter for approval by the appropriate Division Director or Regional Director. ? If the violation is not causing an immediate and significant threat to public health or the environment: < For non hazardous waste orders, ADEQ will refer the case to the Attorney Genera l's Office via a Case Development Memorandum for the Negotiating a Ci vi l Settlement that will include both injunctive relief and a civil penalty. < For hazardous waste orders, ADEQ will issue an Order Assessing a Civil Penalty. ? If the violation is causing an immediate and significant threat to public health or the environment, ADEQ will request a temporary restraining order or preliminary injunction via a Request for Assignment of Assistant Attorney General to be followed by a Case Development Memorandum for Filing a Civil Complaint. ? If the violation was discovered during the course of an inspection, ADEQ will continue to send agency update letters until the filing of a civil complaint .
Boilerplate: The boilerplate administrative order Notice of Violation cover letter language can Boilerplate: Boilerplate: Boilerplate: Boilerplate: Boilerplate: ICE:
be found as Appendix B26. The boilerplate Notice of Violation can be found as Appendix B18. The boilerplate Case Development Memorandum for Negotiating a Civil Settlement can be found as Appendix B4. The boilerplate Order Assessing a Civil Penalty can be found as Appendix B6. The boilerplate Case Development Memorandum for Filing a Civil Complaint can be found as Appendix B3. The boilerplate Request for Assignment of an Assistant Attorney General can be found as Appendix B24. 1) Case Recommended must be entered as an action in the Inspections Screen and the alleged violations, description of facts and compliance documentation requirements must be entered in the Case Screen. 2) Once sent, NOV Sent to RP must be entered as an action in the Case Screen. Once received by the responsible party, NOV Received by RP must be entered as an action in the Case Screen. 3) Once the CDM has been signed by the agency's compliance and enforcement coordinator, Case Development Memorandum Completed must be entered in the Case Screen. 4) Once an Assistant Attorney General has been assigned, Assistant Attorney General Assigned must be entered as an action and the name of the attorney must be entered as additional information in the Case Screen.
If the responsible party has been issued a Compliance Order, Abatement Order or entered into a Consent Order and has met the terms of the order: ADEQ will issue a Termination of Administrative order to the responsible party.
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Boilerplate: The boilerplate Termination of Order can be found as Appendix B25. ICE: 1) Upon receipt of a request for termination of a Compliance Order,
2)
Abatement Order, or Consent Order, Order Termination Request from RP must be entered as an action in the Case screen. Once the request has been approved, Order Terminated must be entered as an action in the Case Screen.
If the responsible party is subject to a Civil Judgment (including a Consent Judgment or Consent Decree) and has violated the Judgment: ? Staff will prepare a Notice of Violation (NOV) and cover letter for approval by the appropriate Division Director or Regional Director. ? If an NOV is issued and a Compliance Documented Letter (reserving further action) is sent, ADEQ will then request that the responsible party submit payment of the stipulated penalties due under the Consent Judgment or Decree. ? If payment is not submitted after the request, ADEQ will refer the issue to the Attorney General's Office. ? If the violation is of a civil judgment, ADEQ will request that the Attorney General's Office file a motion to show cause via a Request for Assignment of Assistant Attorney General and a Case Development Memorandum for Filing a Civil Complaint. ? If the violation was discovered during the course of an inspection, ADEQ will continue to send agency update letters until the filing of a civil complaint or until notifying the responsible party that no further action will be taken.
Boilerplate: The boilerplate Notice of Violation cover letter language can be found as
Appendix B21. Boilerplate: The boilerplate Notice of Violation can be found as Appendix B18. Boilerplate: The boilerplate Case Development Memorandum for Filing a Civil Complaint can be found as Appendix B3. Boilerplate: The boilerplate Request for Assignment of an Assistant Attorney General can be found as Appendix B24. ICE: 1) Case Recommended must be entered as an action in the Inspections Screen and the alleged violations, description of facts and compliance documentation requirements must be entered in the Case Screen. 2) Once sent, NOV Sent to RP must be entered as an action in the Case Screen. Once received by the responsible party, NOV Received by RP must be entered as an action in the Case Screen. 3) Once sent, Stipulated Penalty Demand Letter Sent to RP must be entered as an action in the Case Screen. Once received by the responsible party, Stipulated Penalty Demand Letter Received by RP must be entered as an action in the Case Screen. Once paid, Stipulated Penalty Payment Received from RP must be entered as an action in the Case Screen.
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Once the CDM has been signed by the agency's compliance and enforcement coordinator, Case Development Memorandum Completed must be entered in the Case Screen. Once an Assistant Attorney General has been assigned, Assistant Attorney General Assigned must be entered as an action and the name of the attorney must be entered as additional information in the Case Screen.
If the responsible party has entered into a Consent Judgment or Consent Decree and has met the terms of the order: ADEQ will send a memorandum to the Attorney General's Office requesting the filing of a motion to terminate the Consent Judgment or Decree.
ICE:
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Upon receipt of a request for termination of a Consent Judgment or Consent Decree, Judgment/Decree Termination Request from RP must be entered as an action in the Case screen. Once the motion has been filed with the court, Judgment Decree Closed must be entered as an action in the Case Screen.
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CHAPTER 8: PENALTY DETERMINATIONS ADEQ will determine what constitutes an appropriate settlement penalty on a case-by-case basis, but once a civil complaint seeking penalties has been filed, there will be no settlement without the payment of a significant penalty. In general, the penalty must recapture any identifiable economic gain, and have a deterrent impact on the responsible party. The environmental statutes administered by ADEQ generally contain penalty assessment criteria that a court must consider in determining an appropriate penalty at trial or a hearing. The criteria described below have been developed with these statutory criteria in mind and are used by ADEQ when establishing an appropriate settlement penalty. Not all criteria will be applicable in each situation. In addition, an appropriate settlement may include a penalty mitigation for implementation of a Supplemental Environmental Project (SEP). Although there is no minimum amount for any given penalty, the penalty must recapture any economic gain. The settlement penalty must be reasonably proportionate to the statutory maximum civil penalty. Furthermore, the penalty amount claimed in a civil complaint will be the statutory maximum penalty. 1 The weight given to each factor described below will be determined by the individual program either on a case-by-case basis, or through the development of program-specific guidance. Several programs have developed such penalty calculation guidance. These guidance documents have been included as appendices:
Appendix:
Program A i r Quality - General A i r Quality - Asbestos D r i n k i n g W a t e r - Civil D r i n k i n g Water - Administrative H a z a r d o u s W a s t e - Civil H a z a r d o u s Waste - Civil Administrative L U S T Enforcement Solid W aste U S T Inspections & Compliance P e n a l t y Ca l c u l a t i o n A p p e n d i x None None P4 None P7 G2 None None None 2
A l t h o u g h A D E Q will always seek the statutory ma x i m u m in a civil co m p l a i n t , AD E Q may find it a p p r o p r i a t e to ask for a penalty less than the statutory maximum during the course of a penalty hearing before the cou rt. U S T Inspections & Compliance penalty calculations will be conducted pursuant to U.S. EPA Office of S o l i d W a s t e and Emergency R e s p o n s e D i r e c t i v e 9 6 1 0 . 1 2 , U.S. EPA Penalty Guidance for Violations of UST R e g u l a ti o n s. A D E Q Co m p l i a n c e & En f o r c e m e n t Ha n d b o o k - Version: 12/1/03 Page 8-1
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V e h i c l e Emissions W a t e r Pollution Control WQARF
None None None
GENERAL INITIAL SETTLEMENT PENALTY OFFER ADJUSTMENT FACTORS The factors described below are largely based upon the criteria imposed on courts and have been used to develop the program-specific penalty calculation procedures listed above. These factors will also be used on a case-by-case basis by those programs that have not developed a programspecific guidance to determine the first offer of settlement. The calculated first offer of settlement will be part of the Case Development Memorandum sent the Attorney General's Office for the purposes of requesting legal representation in negotiating a civil settlement. The bottom line for settlement will typically be set after considering the General Settlement Criteria described below in consultation with the Attorney Generals' Office. Aggravating Factors Seriousness of violation: includes threat or actual harm to human health and/or the environment and/or ADEQ's regulatory program. History of repeated violations: a history of repeated violations of the same rules or statutes or payment of previous penalties for the same violations or similar violations. Record of noncompliance: a history of violation of other environmental laws and regulations, whether federal, Arizona or local. Recalcitrance: refusal to comply with ADEQ requirements or directives, including deliberate attempts to delay the settlement process by unnecessarily extending negotiations. Duration of violation: the violation has continued over a period of time, with the responsible party's knowledge and no or minimal attempts have been made to correct the violation. Other evidence of bad faith: unique bad faith factors, such as ignoring past efforts to acquaint the responsible party with applicable requirements or acts of willful or gross negligence. Mitigating Factors Good faith efforts: timely corrective action or other evidence of good faith that results in progress towards compliance. Fault shared by another responsible party: if more than one responsible party is responsible for the violation, the penalty may be apportioned based on ADEQ's knowledge of the facts and professional judgment. Other mitigating factors: ADEQ will consider other factors which may indicate the need for a reduction in penalty. For example, conflicting guidance from ADEQ or other regulatory agencies concerning the particular activity may be considered. Deterrence Factors Economic impact of the penalty: the penalty must be sufficiently harsh to deter the responsible party from repeated violations and recapture any identifiable economic gain.
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Deterrence value to other potential responsible parties: consideration should be given as to whether the penalty will deter other potential responsible parties from similar acts. GEN ERAL SETTLEMENT CRITERIA The following settlement criteria are not considered in calculating the initial settlement penalty offer, but should be considered in determining an appropriate final settlement (i.e., the bottom line). Likelihood of Success In conjunction with advice from the Attorney General's Office, ADEQ should assess its chances of prevailing in litigation and whether ADEQ has a reasonable probability of getting a judgment that is at least as great as the penalties sought. Relevant Judicial Precedent ADEQ, in conjunction with the Attorney General's Office, should consider judicial precedent to determine penalties assessed by courts under similar circumstances. Ability to Pay Penalty: The penalty should not bankrupt the responsible party unless the responsible party has demonstrated an inability to remain solvent and finance environmental compliance. As a result, inability to pay may be considered. However, inability to pay must be established by the responsible party through clear and convincing evidence. Furthermore, payment schedules are preferred over a reduction in penalties, but a penalty payment schedule generally should not exceed three years. When a payment schedule is agreed upon, interest should be included. Interest should be at 10% per annum, unless the imposition of that rate would impose an extraordinary hardship upon the responsible party. If the 10% rate would impose such a hardship, a lesser amount may be negotiated. SUPPLEMENTAL ENVIRONMENTAL PROJECTS (SEPs) To further ADEQ's goals to protect and enhance public health and the environment, a Supplemental Environmental Project (SEP) may be included in a civil settlement to mitigate a portio n of the civil penalty. 3 This Section sets forth the types of projects that are permissible as SEPs, the penalty mitigation appropriate for a particular SEP, and the terms and conditions under which they may become part of a settlement. The primary purpose of a SEP is to encourage and obtain environmental and public health protection and improvements that may not otherwise have occurred without the settlement incentives provided by the use of SEPs. As described above, ADEQ considers such factors as the economic benefit, the gravity or seriousness of the violation, and prior compliance history when establishing an appropriate settlement penalty. Evidence of a responsible party's commitment and ability to perform a SEP is
S t i p u la t e d penalties for violations of consent decrees or other settlement agreements may not be mitigated t h r o u g h the use o f SEP s . A D E Q Co m p l i a n c e & En f o r c e m e n t Ha n d b o o k - Version: 12/1/03 Page 8-3
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also a relevant factor that ADEQ will consider in establishing an appropriate settlement penalty. All else being equal, the final settlement penalty will be lower for a responsible party who agrees to perform an acceptable SEP compared to the responsible party who does not agree to perform a SEP. Although ADEQ encourages the use of SEPs that are consistent with this Section, SEPs may not be appropriate in the settlement of all cases. Although ADEQ may suggest a willingness to consider SEPs as part of settlement and generally describe the criteria for an acceptable SEP, it is the responsible party's responsibility to propose specific SEPs and to demonstrate that the criteria within this Section have been met. While penalties play an important role in environmental protection by deterring violations and creating a level playing field, SEPs can play an additional role in securing significant environmental or public health protection and improvements. When evaluating a proposed project to determine if it qualifies as a SEP and determining how much penalty mitigation is appropriate, ADEQ will use the following five-step process: STEP 1: Ensure that the project meets the basic definition of a SEP SEPs are environmentally beneficial projects which a responsible party agrees to undertake in settlement of a penalty action, but which the responsible party is not otherwise legally required to perform. When proposing a SEP, the responsible party must demonstrate to ADEQ that the SEP improves, protects, or reduces a risk to public health, or the environment at large. While in some cases a SEP may provide the responsible party with certain benefits, there must be no doubt that the project primarily benefits public health or the environment. As a result, the project or activity must have been initiated after identification of the violation by ADEQ, and must not otherwise be required by any federal, state or local law or regulation.4 Furthermore, SEPs cannot include corrective actions that the responsible party must perform to resolve the violations at issue. STEP 2: Ensure that the following guidelines are satisfied ? A SEP must be consistent with the provisions of the statutes that are the basis of the enforcement action. ? All SEPs must advance at least one of the objectives of the environmental statutes that are the basis of the enforcement action and must have adequate nexus. Nexus is the relationship between the violation and the proposed project. This relationship exists only if any of the following is true: < The project is designed to reduce the likelihood that similar violations will occur in the future; or < The project reduces the adverse impact to public health or the environment to which the violation at issue contributes; or
S E P s may include activities which the defendant/respondent will become legally obligated to undertake t w o or more years in the future, if the project will result in the facility coming into compliance earlier than the d e a d l i n e . Such "acc e l e r a t e d co m p l i a n c e " projects are not allowable, however, if the regulation or statute pro v i d e s a b e n e f it (e.g., a higher emission limit) to the defendant/respondent for early compliance. A D E Q Co m p l i a n c e & En f o r c e m e n t Ha n d b o o k - Version: 12/1/03 Page 8-4
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< ?
?
?
?
The project reduces the overall risk to public health or the environment potentially affected by the violation at issue. ADEQ must not play any role in managing or controlling funds that may be set aside or escrowed for performance of a SEP. ADEQ must also not retain authority to manage or administer the SEP. ADEQ may perform oversight to ensure that a project is implemented pursuant to the provisions of the settlement and must have legal recourse if the SEP is not adequately performed. The type and scope of each project must be explicitly defined in the signed settlement agreement. The agreement should describe the specific actions to be performed by the responsible party and provide for a reliable and objective means to verify that the responsible party has completed the project in a timely manner. This may require the responsible party to submit periodic reports to ADEQ. A final report certified by an appropriate corporate official and evidencing completion of the SEP and documenting SEP expenditures, should be required. To the extent feasible, the responsible party should be required to quantify the benefits associated with the project and provide ADEQ with a report setting forth how the benefits were measured or estimated. The responsible party must agree that whenever it publicizes a SEP or the results of a SEP, it will state in a prominent manner that the project is being undertaken as part of the settlement of an enforcement action. SEPs which require ADEQ review and comment on interim milestone activities, and other complex SEPs may not be appropriate because of the time commitment that must be made on behalf of ADEQ. A project cannot be used to satisfy ADEQ's statutory obligation or another state agency's obligation to perform a particular activity. Furthermore, if a state statute prohibits the expenditure of state resources on a particular activity, ADEQ cannot consider projects that would appear to circumvent that prohibition. A project must not provide additional resources to support specific activities performed by ADEQ employees or ADEQ contractors.
STEP 3: Ensure that the project fits within one (or more) of the designated categories of SEPs. ADEQ has identified seven specific categories of projects which may qualify as SEPs. In order for a proposed project to be accepted as a SEP, it must satisfy the requirements of at least one category.5 1) Public Health A public health project provides diagnostic, preventative and/or remedial components of human health care which is related to the actual or potential damage to human health caused by the violation. Public health SEPs are acceptable only where the primary benefit of the project is the population that was harmed or put at risk by the violations.
P r o j e c t s determined to have environmental merit which do not fit within at least one of the seven c a t e g o r i e s above but that are otherwise fully consistent with all other provisions of this Section, may be accepted w i t h the advance approval of the ADEQ Director. A D E Q Co m p l i a n c e & En f o r c e m e n t Ha n d b o o k - Version: 12/1/03 Page 8-5
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Examples: Epidemiological data collection and analysis, medical examinations of potentially affected persons, collection and analysis of blood/fluid/tissue samples, medical treatm ent and rehabilitation therapy. Pollution Prevention A pollution prevention project is one which reduces the generation of pollution through "source reduction", including any practice which reduces the amount of any hazardous substance, pollutant or contaminant entering any waste stream or otherwise being released into the environment, prior to recycling, treatment or disposal. (After the pollutant or waste stream has been generated, pollution prevention is no longer possible and the waste must be handled by appropriate recycling, treatment, containment, or disposal methods.) In all cases, for a project to meet the definition of pollution prevention, there must be an overall decrease in the amount and/or toxicity of pollution released to the environment, not merely a transfer of pollution among media. This decrease may be achieved directly or through increased efficiency (conservation) in the use of energy, water or other materials. Examples: Equipment or technology modifications, process or procedure modifications, reformulation or rede
