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Underground Storage Tank (UST) Compliance Monitoring and Enforcement Process: What Enforcement Actions Should be Taken?
RCRA UST Enforcement Quick Links
- RCRA Home
- UST Enforcement
- UST Enforceable Requirements
- Enforcement Process
- Identifying Violations
- Determining Enforcement Response
- Taking Enforcement Actions
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Enforcement actions reflect a variety of circumstances including the circumstances of the violation and the approach necessary to achieve and maintain compliance. |
Who Should File?
When the state performs the inspection, the state generally pursues the appropriate enforcement. When the EPA performs the inspection, the EPA pursues the enforcement.
On occasion, states refer cases to the EPA for enforcement.
What Enforcement Authorities Does EPA Have to Compel Compliance and/or Assess a Penalty?
EPA has both administrative and civil judicial enforcement authorities to address UST non-compliance.
Administrative Actions
EPA is authorized to issue administrative orders to compel compliance under § 6991e of Resource Conservation and Recovery Act (RCRA). The procedures for issuing RCRA § 6991e administrative penalty orders are governed by 40 C.F.R. Part 22 procedures, Consolidated Rules of Practice Governing the Administrative Assessment of Civil Penalties and the Revocation or Suspension of Permits (PDF) (26pp, 129k,About PDF).
A typical compliance order:
- Requires that the owner/operator come into compliance immediately or within a reasonable, specified time period.
- May include a civil penalty, not to exceed:
- $16,000 per tank per day for each violation of a requirement or standard at 40 CFR Part 280 or any approved state program, and
- $16,000 per tank for failure to comply with the notification requirements.
- Indicates to the owner/operator that continued noncompliance will result in further legal action, including the assessment of additional penalties of up to $37,500 for each day of noncompliance with the compliance order.
Civil Judicial Actions
If administrative orders are not complied with or if compliance is needed immediately, as in the case of an emergency, enforcement personnel should initiate a civil judicial action under § 9006(a), (except for federal facilities).
Imminent and Substantial Endangerment
RCRA § 7003 authority may also be available for situations that may present imminent and substantial endangerment to public health or the environment.
For additional information on issuing orders and assessing penalties refer to:
- UST/LUST Enforcement Procedures Guidance Manual
- Consolidated Rules of Practice Governing the Administrative Assessment of Civil Penalties and the Revocation or Suspension of Permits (CROP) (PDF) (26 pp, 129K,About PDF)
What UST Enforcement Approaches are Typically Pursued?
The three typical administrative enforcement approaches include: Field Citation, Pre-Complaint Negotiated Settlement, and Administrative Complaint and Final Order. The appropriate enforcement action is dependent on the type and severity of the violation
Field Citation
EPA has prepared Guidance on Federal Field Citation Enforcement which provides direction on the use of field citations and a complete description of the program, allowing for rapid and resource efficient compliance assurance.
For more information regarding the limited circumstances in which it may be appropriate to issue field citations for violations of the 1998 requirements, EPA personnel should refer to "Use of Field Citations for Failure to Comply with 40 C.F.R. § 280.21 Upgrade, Replacement or Closure Requirements at UST Facilities".
Field citations are appropriate for violations that are:
- Clear-cut
- Easily verifiable
- Easily correctable
- For first time violators
Field citations are inappropriate for:
- Violations that involve failure to install 1998 upgrades
- Repeat violators
- Violations that pose a serious risk to the environment and public health
Typical Field Citation Process
- Field citation is issued.
- Inspector conducts the necessary follow-up to ensure that the facility has returned to compliance and paid the assessed penalty.
- If the violations are corrected and penalties paid, the process concludes.
- If violations are not corrected and the penalty is not paid:
- Citation is withdrawn, unless a request for an extension has been submitted and granted.
- A determination is made whether a formal enforcement action, or another course of action, should be taken (formal enforcement action should include higher penalties than the field citation settlement terms).
Experience has shown that field citations can result in effective and resource efficient resolutions for both the government and the owners and operators of underground storage tanks.
Pre-Complaint Negotiated Settlement
This approach may allow the parties to settle the case more quickly and under terms acceptable to both parties.
Typical Negotiated Settlement Process
- Inspector prepares an inspection report.
- Case developer is assigned.
- Regional Media Program Manager requests assignment of an attorney.
- Case developer meets with the assigned attorney.
- If additional information is needed prior to filing a Complaint, an information request letter is sent.
- When appropriate, a “Show Cause” letter is sent to the facility owner/operator, describing the alleged violations and inviting the owner/operator to engage in pre-filing negotiations.
- If the owner/operator does not respond to the invitation, the attorney files the Complaint.
- If the owner/operator responds, negotiations proceed.
- If negotiation results in an agreement, the matter is settled with the filing of a consent agreement and final order that simultaneously commences and concludes the Part 22 enforcement proceeding.
- If negotiations fail to result in a settlement, the attorney files the Complaint.
Administrative Complaint and Final Order
This traditional administrative enforcement approach is used when EPA believes that filing a complaint is necessary to achieve compliance. It also is used when an owner/operator declines to participate in pre-filing settlement negotiations or when the negotiated settlement process otherwise does not result in a settlement.
Typical Administrative Complaint Process
- Inspector prepares an inspection report.
- Case developer is assigned.
- Regional Media Program Manager requests assignment of an attorney.
- Case developer meets with the assigned attorney.
- If additional information is needed prior to filing a Complaint, an information request letter is sent
- A Complaint is drafted.
- Complaint with proposed penalty is filed with the Regional Hearing Clerk (or hearing Clerk for cases initiated at EPA headquarters) and copy served on UST owner/operator.
- An Administrative Law Judge (ALJ) is assigned. The ALJ is responsible for conducting administrative hearings, ruling on motions, issuing necessary orders, examining witnesses, and issuing subpoenas.
Settlement and Hearing Process
Pre-Hearing Stage: Owner/operator answers the complaint, and settlement or pre-hearing conferences proceed.
Settlement Stage: Settlement of the case may occur at any stage of the process. If possible, EPA prefers that settlement occur prior to the hearing. If settlement is reached, terms are memorialized into a Consent Agreement and Final Order (CAFO). The CAFO is reviewed by the Regional Judicial Officer or by the Environmental Appeals Board (EAB) as appropriate. The CAFO may be approved or referred back for further discussions.
Hearing Stage: If settlement is not reached, the ALJ will hold a hearing that will result in a formal decision. The parties may appeal the ALJ’s decision to the EAB. The EAB will then issue a final order. A respondent may appeal the final order to federal court (except for federal agencies).
How are Penalties for Non-Compliance with UST Requirements Determined?
UST enforcement actions must take into account penalty calculations and, when proposed, supplemental environmental projects.
RCRA §9006 allows the agency to assess monetary penalties for violations of UST requirements. Factors to be considered when determining penalties include: The seriousness of the violation and any good faith efforts to comply with the applicable requirements; the compliance history of the UST owner or operator; and any other factor the Administrator considers appropriate.
The Penalty Guidance for Violations of UST Regulations (UST Penalty Policy) provides guidelines for calculating penalty calculations. The “UST Penalty Policy” includes gravity-based and economic benefit components, which are the major drivers for calculating the initial penalty amount. These amounts may be adjusted upward or downward, depending on other factors.
Part of the UST Penalty Policy’s explanation for calculating the economic benefit component, however, has become outdated. Exhibit 3, listing the marginal tax rate based on federal corporate tax rates, is outdated.
As indicated in the UST Penalty Policy, the “rule of thumb” approach for calculating a violator’s economic benefit may be used when the initial estimate of the economic benefit is less than $10,000.
For all other cases, or when the violator rejects the rule of thumb estimation, the BEN model should be used to calculate the economic benefit component. The primary purpose of the BEN model is to calculate the economic benefit of noncompliance with EPA regulations. The BEN model also provides the appropriate equity discount rate to be used in the rule of thumb estimation.
Calculating Penalties at Federal Facilities
Federal agencies are also subject to penalties (PDF) (22 pp, 69K,About PDF) that include an economic benefit component. To assist in this calculation, guidance has been issued on how to calculate the economic benefit component for violations involving federal facilities:
- Guidance on Calculating the Economic Benefit of Noncompliance by Federal Agencies (1999) (PDF) (7 pp, 333K,About PDF)
- Guidance on Calculating the Economic Benefit of Noncompliance by Federal Agencies (2006) (PDF) (3 pp, 131K,About PDF)
Supplemental Environmental Projects
In certain instances, Supplemental Environmental Projects (SEPs) may be part of a settlement. SEPs that can provide environmental and public health improvements that may not otherwise be part of a settlement are addressed in the EPA SEP Policy (PDF) (24 pp, 1.9MB,About PDF).
SEPs are defined as “environmentally beneficial projects which a defendant/respondent agrees to undertake in settlement of an enforcement action, but which the defendant/respondent is not otherwise legally required to perform.”
Even though EPA has broad discretion in settling cases, a proposed SEP must pass statutory and constitutional muster, and be consistent with EPA’s authorities. There are seven specifically identified categories of projects that qualify as SEPs:
- Public Health
- Pollution Prevention
- Environmental Restoration
- Environmental Protection
- Assessments and Audits
- Environmental Compliance Promotion
- Emergency Planning and Preparedness
An acceptable SEP must satisfy the requirements of at least one category, in addition to the other requirements of the SEP Policy.
For more information, refer to: