Region 8
Attachment D: Indian Policy Criteria for Formal EPA Enforcement Actions at Tribal Facilities (from step 14 of the guidance)
EPA's national policy sets forth three factors for EPA to consider prior to taking a formal enforcement action at a tribal facility. In step 14 of the guidance, the proponent of taking enforcement action explains how the specific factual circumstances meet the three criteria. This will be done by reviewing the compliance and compliance assistance history of the facility. The three criteria are listed below, along with some possible applicable facts, to be considered in preparing such a document (MARK DOCUMENTS "CONFIDENTIAL AND PREDECISIONAL").
- A significant threat to human health or the environment exists (the analysis may include discussion of the following and/or other factors):
- The current status of compliance or noncompliance for each count proposed;
- The duration and gravity of the ongoing and past violations, including times when the facility was in compliance;
- Likelihood that violations may continue or recur (including whether the facility has applied technological, staffing, and/or other solutions to remedy the problem);
- The nature and extent of the threat to human health or the environment for each count proposed and for the noncompliance as a whole.
In light of the above, does a significant threat to human health or the environment exist? - Such action would reasonably be expected to achieve effective results in a timely manner (the analysis may include discussion of the following factors):
- The success or failure the facility has had recently in achieving and maintaining compliance;
- Information on the likely reason(s) for the noncompliance (technical capability, management turnover, lack of financial or personnel resources, neglect; etc.);
In light of the above, can EPA reasonably expect to achieve effective results in a timely manner? - The federal government cannot utilize other alternatives to correct the problem in a timely fashion (the analysis may include discussion of the following factors):
- EPA's or the Tribe's efforts to work with other federal agencies to assist the facility in achieving compliance,
- Compliance assistance (updated to present) which includes all contacts with the facility or Tribe (see Attachment B), or a narrative description and analysis of such compliance assistance;
- The response of other federal agencies to the facility's noncompliance;
- If a judicial referral, describe why administrative action (with or without penalties) may be insufficient to correct the problem.
In light of the above, could the Federal government use other alternatives to correct the problem in a timely fashion?
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