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Audit Report
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Report of EPA's Oversight of
State Stack Testing Programs
Report Number 2000-P-00019
September 11, 2000
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Inspector General Division
Conducting the Audit:
Mid-Atlantic Audit Division
Philadelphia, PA
Program Offices Involved:
Regions Covered:
State Covered:
Office of Enforcement and
Compliance Assurance
Washington, D.C.
Regions II, III, V, and VII
New Jersey Department of
Environmental Protection
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF INSPECTOR GENERAL
MID-ATLANTIC DIVISION
1650 Arch Street
Philadelphia, Pennsylvania 19103-2029
(215)814-5800
September 11, 2000
MEMORANDUM
SUBJECT: Final Report of EPA's Oversight of
State Stack Testing Programs
Report Number 2000-P-00019
FROM: Carl A. Jannetti
Divisional Inspector Generator Audit
Mid-Atlantic Division (3AI00)
TO: Steven A. Herman, Assistant Administrator
for Enforcement and Compliance Assurance (2201A)
Regional Administrators I - X
Attached is our final audit report on the Environmental Protection Agency's
(EPA's) Oversight of State Stack Testing Programs. The purpose of the audit was
to determine whether states were either not requiring stack tests, or requiring
stack tests and not reporting the results to EPA.
This audit report contains issues that describe conditions the Office of
Inspector General (OIG) has identified and corrective actions the OIG recommends.
This audit report represents the opinion of the OIG. Final determinations on
matters in this audit report will be made by EPA managers in accordance with
established EPA audit resolution procedures. Accordingly, the finding contained in
this audit report does not necessarily represent the final EPA position, and is not
binding upon EPA in any enforcement proceeding brought by EPA or the
Department of Justice.
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ACTION REQUIRED
This report makes recommendations to the Assistant Administrator for the
Office of Enforcement and Compliance Assurance (OECA) and the EPA Regional
Administrators. The Assistant Administrator of OECA is designated as the
primary action official, and as such, should consolidate its response and the
Regional comments into one Agency response. In accordance with EPA Order 2750,
the action official is required to provide a written response to the audit report
within 90 days of the date of this report, however, because OECA is asked to
consolidate the regional responses we will provide them an additional 15 days. We
ask that the Regional Administrators submit their response to OECA within 90
days and provide us an informational copy of their response. Also, please submit an
electronic copy of the response.
We have no objections to the further release of this report to the public.
Should your staff have any questions about this report, please have them contact
Patrick Milligan or Lorraine Fleury at 215-814-5800.
Attachment
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EXECUTIVE SUMMARY
Purpose EPA headquarters officials requested we perform a review of
state stack test programs. They were concerned that states
were either not requiring stack tests or not reporting them to
EPA. A stack test measures the amount of a specific
pollutant or pollutants being emitted through stacks at a
facility. Stack testing is one of the primary methods for
determining compliance with emission limits.
Results-In-Brief EPA guidance does not clearly address important issues such
as how and what stack testing information should be
reported. As a result, EPA and the states are inconsistently
implementing the stack test portion of their air enforcement
programs. There is confusion and disagreement among the
Office of Enforcement and Compliance Assurance (OECA),
EPA regions and states regarding issues such as what stack
test information should be reported, what is a stack test, and
how tests should be performed and evaluated. For example,
some regions require states to report stack test data into the
Agency's database, while other regions do not.
Without sufficient stack testing information, regions do not
know which facilities are testing and how often. As a result,
facilities in some states may be subject to less stringent
testing requirements, or even no stack testing. In order for
EPA to fulfill its oversight function, more complete and
consistent stack test information is needed. The Agency
needs better assurance that states are requiring enough
quality stack tests to identify violators of the CAA. Once
EPA knows the condition of state programs, it can identify
those states whose stack testing programs need
improvement.
Recommendation We recommended that the Assistant Administrator for
OECA work with the EPA regions and states to issue
national guidance on stack testing. This guidance should
address stack test activities such as: the definition of a stack
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test; proper procedures for conducting tests; how tests will be
counted; the type of stack test information needed; and how
it will be reported. We also recommended that the 10 EPA
Regional Administrators increase oversight of their states'
stack test programs as needed, adequately monitor the flow
of stack test data submitted by states, and perform sufficient
follow-up on stack tests.
EPA and New OECA, Regions I, II, III, V, VII, and IX, and New Jersey
Jersey Response responded to our draft report and generally agreed with our
finding and recommendations. OECA is currently working
with the regions and states to develop a Compliance
Monitoring Strategy (CMS) that addresses our
recommendations.
OIG Evaluation We concur with the Agency's response and the proposed
corrective action. As OECA continues to work with the
regions and states developing the CMS, it can be revised to
address our recommendations. Also, EPA and New Jersey
offered some clarifying suggestions and we revised the report
accordingly.
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TABLE OF CONTENTS
EXECUTIVE SUMMARY i
CHAPTER 1 1
INTRODUCTION 1
Purpose 1
Background 1
Description of a Stack Test 2
Why F acilities Stack Test 3
Scope and Methodology 5
Prior Audit Coverage 7
CHAPTER 2 9
STACK TEST ACTIVITIES AND STATE REPORTING
NEED TO BE STANDARDIZED 9
Inaccurate EPA Database 10
Inaccuracies Confirmed 11
Regional Responses to OIG Questionnaire 13
Uniform Stack Test Procedures Needed 15
Conclusion 20
Recommendations 21
OECA's Response 22
OIG Evaluation 22
Regional Responses 23
OIG Evaluation 24
NJDEP Response 25
OIG Evaluation 25
APPENDIX 1
OECA'S RESPONSE TO DRAFT REPORT 27
APPENDIX 2
EPA REGIONAL RESPONSES TO DRAFT REPORT 31
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APPENDIX 3
NJDEP RESPONSE TO DRAFT REPORT 55
APPENDIX 4
DISTRIBUTION 77
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CHAPTER 1
INTRODUCTION
Purpose Officials from the Office of Enforcement and Compliance
Assurance (OECA) requested that we perform this review of
state stack test programs. OECA was concerned that states
were either not requiring stack tests or not reporting them to
EPA. The objectives of our audit were to:
~ Determine whether states were either not requiring
stack tests, or requiring stack tests and not reporting
the results to EPA.
~ Evaluate state stack test programs.
~ Assess the adequacy of EPA's oversight at the
Headquarters and regional levels.
~ Identify ways to improve the effectiveness of state
stack test programs as well as EPA's oversight of state
activities.
Background EPA guidance lists five levels of inspections that can be
performed at facilities. Level 0, commonly called a "drive
by," is the most basic inspection. EPA does not consider this
level of inspection to be an acceptable compliance assurance
method. To adequately evaluate a facility's compliance with
the Clean Air Act (CAA), EPA's Compliance Monitoring
Strategy (CMS) explains that states need to perform at least
a Level 2 inspection at major stationary sources. The CMS
defines the necessary tests and evaluations that must be
performed for an inspection to be considered a Level 2. This
type of inspection must include an assessment of the
compliance status of all air pollution sources within the
facility.
During a Level 4 inspection, which is the most thorough
type, the inspector is required to monitor the operating
parameters of all process and control devices during a stack
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Report No. 2000-P-00019
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test. This type of inspection prepares an actual emissions
baseline for the source through the use of a stack test. Once
established, these parameters should be used to help
determine compliance during future Level 2 inspections.
Description of a A stack test, also referred to as a performance or source test,
Stack Test measures the amount of a specific pollutant or pollutants
being emitted through stacks at a facility. These tests are
performed primarily at major facilities, or at other facilities
of concern. Generally, a major facility is any source which
emits or has the potential to emit 100 tons per year of the
more highly regulated pollutants subject to regulation under
the CAA1. Some of the more highly regulated pollutants
include particulate matter, sulfur dioxide, carbon monoxide,
nitrogen oxide, and volatile organic compounds.
The number of stacks at a facility can vary considerably
depending on the type and size of a facility. For example,
some of the smaller major facilities may have a single stack,
while larger facilities can have more than one hundred
stacks. The stack test methods that must be followed are
provided in the Code of Federal Regulations, unless the state
has promulgated its own procedures that were approved by
EPA. Any deviations from the recommended test methods
must be approved by the state and/or EPA. Usually a stack
test can take from one to three days to complete and
generally includes three test runs. The cost to the facility for
completing a test can typically range from $10,000 to $50,000
per stack.
I A stack test usually consists of
Phases of a Slack Test I three phases, the: (1) protocol
review; (2) test observation, and
(3) final report review. Each
phase is conducted to ensure that the test is appropriate,
accurate, and valid.
Generally, a facility hires a consultant to conduct the stack
test. The consultant prepares a protocol describing the
pollutants to be tested, the test methods they plan to use,
and the expected operating conditions at the facility. The
facilities can also be classified as a major if they emit as low as 10 tons per year of selected
pollutants such as lead.
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Report No. 2000-P-00019
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protocol should be made available to regulatory personnel
(EPA, state or local officials) for their review prior to the test.
Once approved, a test date is scheduled.
Whenever possible, regulatory personnel should be present
during enough of the testing to ensure the test is valid.
Depending on the type of test, samples may be sent to a
laboratory for analysis. After the test results have been
analyzed, the consultant issues a final report to the facility.
Regulatory personnel should review the report to determine
whether the test was accurate, complete and valid. If the
facility fails the test, the regulatory agency should take
appropriate enforcement action to ensure the facility is
brought into compliance. If the test is determined to be
invalid, the regulatory agency should require retesting.
Enforcement actions typically begin with a notice of
violation. Depending on the severity of the violation, the
regulatory agency will take one of several enforcement
actions. For example, a state or EPA Order will require the
facility to take corrective action within a specified time
frame, and if appropriate, the regulatory agency assesses a
penalty.
Why Facilities Some EPA and state officials view stack testing as the most
Stack Test effective way to determine compliance because it
demonstrates whether a facility has the ability to comply
with the CAA. Officials further explained that if a facility
was ever going to be in compliance, it would be for a stack
test. This is because the facility is aware that a test is
scheduled and has ample time to adjust the equipment to
demonstrate compliance with emission limits. However,
despite this advance notice, some facilities fail the test.
When this occurs, it is unlikely that the facility was in
compliance prior to the test.
In addition to measuring the facility's ability to comply, stack
testing is important for a variety of reasons, some of which
are discussed below.
Kmission Kaclors
i
A significant number of facilities
are regulated based on emission
factors, which are an estimate of the
amount of pollution being emitted
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Report No. 2000-P-00019
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at a facility. The states and EPA use emission factors when
a facility does not have more reliable information. EPA
developed these factors by first grouping types of industries
and then specific manufacturing processes or equipment
within that industry. For example, burning oil in industrial
boilers results in carbon monoxide pollution. The amount of
oil burned multiplied by the appropriate emission factor
approximates the amount of carbon monoxide emitted into
the atmosphere for a given period of time. This estimate is
then used to help establish the emission limit, in the facility's
permit.
There are two reasons why stack tests should be conducted
at facilities regulated by limits based on emission factors.
First, emission factors are rated for reliability based on the
quantity and quality of the test data used to calculate the
factor. A 1996 OIG audit report entitled Emission Factor
Development concluded that many of the emission factors
used in estimating pollution are unreliable and outdated. If
the emission factors are inaccurate, the facility may be
emitting more pollution than appropriate, resulting in harm
to the environment. The more stack test data used to
develop the emission factors, the more reliable the estimates.
Second, as one New Jersey air inspector explained, stack test
results at times differ significantly from the estimate used to
develop the emission factor. Because the estimates are
inaccurate, the facility is polluting more than the emission
limit, set in the facility's permit. This excess pollution may go
undetected unless the state requires the facility to perform a
stack test. When a stack test discloses that the facility is
exceeding its permit limit, or polluting more than it is
allowed, the facility may need to lower production or install
pollution control equipment in order to comply with the CAA.
which continuously monitors
and records a specific pollutant
concentration. As a result, these monitors can provide
information which may be directly enforceable. A modified
stack test, called a performance specification test, is required
when a CEMS is installed. This test is used to calibrate the
('onl inuous Kmission
Monitoring System
A Continuous Emission
Monitoring System (CEMS) is
an apparatus placed on a stack,
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Report No. 2000-P-00019
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monitor and ensure it accurately measures emissions of the
target pollutant.
EPA has not yet developed performance specification
methods for continuous monitoring of some types of
pollutants, such as particulate matter. For such pollutants,
the only way to measure compliance with emission limits is
to perform stack testing. Agency officials said that stack
testing should be specified at certain intervals in order to
ensure continuing compliance.
, The CAA of 1990 imposed more
o ulion-( .uiMiig I g^ringent requirements on
,nl J regulated facilities, which
included increased stack
testing. For example, after
installing specific types of pollution equipment, facilities are
required to conduct a stack test. In some cases, periodic tests
are also required after the initial test.
When manufacturing equipment is first installed, it is
designed to operate at the optimal level for minimizing
pollution. However, the efficiency of this equipment may
deteriorate over time without proper maintenance. Because
the amount of pollution can increase as the equipment ages,
there is a need to periodically stack test.
Scope and We performed this audit according to the Government
Methodology Auditing Standards (1994 Revision) issued by the
Comptroller General of the United States as they apply to
performance audits. Our review included tests of program
records and other auditing procedures we considered
necessary for the purpose of expressing an opinion based on
our audit objectives. Our recommendations address the need
for EPA to clarify state reporting requirements of stack test
information. This will improve the Agency's oversight of
state air enforcement programs.
To accomplish our objectives, we conducted audit work at:
OECA's Enforcement Planning, Targeting, and Data Division
and its Air Enforcement Division, both in EPA
Headquarters; four regional EPA offices, Regions II, III, V,
VII; and the State of New Jersey. We held numerous
interviews and meetings with officials from OECA, the Office
of Air Quality Planning and Standards (OAQPS), the
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regions, and NJDEP to discuss their roles and
responsibilities in relation to the issues we identified.
However, we did not conduct interviews or reviews at local
agencies. In addition, we reviewed applicable laws,
regulations, and records maintained by OECA, the regions
and states.
We also held discussions with the State and Territorial Air
Pollution Program Administrators and the Association of
Local Air Pollution Control Officials (STAPPA/ALAPCO).
These two national associations represent local and state air
pollution control agencies throughout the United States.
In order to evaluate EPA's oversight of the stack testing
program, we analyzed stack test data from the AIRS Facility
Subsystem (AFS) database. Based on this analysis, we
selected Region II and the State of New Jersey for review. To
evaluate NJDEP's program, we reviewed stack test files
maintained at the State office. The files contained items
such as the facility's permit, the protocol, and a final report.
In addition, the files contained correspondence prepared by
the State to consultants performing the tests, the State's
review of the protocol, the observer's checklist, and the
State's evaluation of the final report.
To obtain information on regional oversight of state stack
testing activities we sent a questionnaire to the 10 EPA
regions. Based on the responses to the questionnaires, we
visited three regions to further evaluate their programs.
Our survey began on December 7, 1998 and ended on
May 7, 1999. As a result of the survey, we initiated an in-
depth review on May 8, 1999. We completed the fieldwork on
November 30, 1999. We met with senior OECA officials on
December 14, 1999 to discuss the issues we planned to report
and our proposed recommendations.
We issued the draft report on April 25, 2000. Because this
audit was national in scope, we received comments from
OECA, six EPA Regions and the State of New Jersey.
Regions I, II, III, V, VII, and IX were the six Regions that
commented on our draft report. We requested that the
Assistant Administrator for OECA consolidate the EPA
regional responses. OECA submitted the consolidated
response to us on June 26, 2000 and New Jersey provided its
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Report No. 2000-P-00019
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response on May 26, 2000. Based on the comments we
received, we made minor modifications to our report. At the
end of Chapter 2, we included a summary of EPA's and New
Jersey's responses to our finding, as well as our evaluation of
their responses. The complete responses from OECA, the
EPA regions, and New Jersey are included in Appendices 1
through 3, respectively. Based on discussions with OECA
personnel, we agreed that an exit meeting was not necessary
because OECA concurred with the finding and
recommendations in the report.
Prior Audit An EPA OIG audit report entitled Emission Factor
Coverage Development (#6100318) was issued on September 30, 1996.
This report discussed the importance and impact of properly
developing emission factors.
The OIG recommended that the limited progress made in
emission factor development be reported as a material
weakness under the Federal Manager's Financial Integrity
Act. The Office of Air and Radiation (OAR) did not agree
with the OIG recommendation, but did establish a five-year
plan to address the emission factor program.
An EPA OIG audit report entitled Consolidated Review of the
Air Enforcement and Compliance Assistance Programs
(#7100306) was issued on September 30, 1997. This report
consolidates national issues identified during reviews of
Regions V, VI and IX's air enforcement and compliance
assistance programs.
An EPA OIG audit report entitled Consolidated Report on
OECA's Oversight of Regional and State Air Enforcement
Programs (#8100244) was issued on September 25, 1998.
This report was a compilation of audits performed
nationwide on EPA's oversight of the air enforcement data at
six states.
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Report No. 2000-P-00019
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CHAPTER 2
STACK TEST ACTIVITIES AND STATE REPORTING
NEED TO BE STANDARDIZED
The primary vehicle for controlling air emissions from
stationary sources in the United States is through the state's
permitting process. Substantial federal and state resources
have gone into establishing the standards for issuing
permits. Without a mechanism to effectively measure and
evaluate facilities' performance, a permitting program is
meaningless. Stack testing is one of the primary methods for
determining compliance with emission limits.
EPA and the states are inconsistently implementing the
stack test portion of their air enforcement programs. There
is confusion and disagreement among OECA, EPA regions
and states regarding issues such as what stack test
information should be reported, what is a stack test, and how
tests should be performed and evaluated. For example, some
regions require states to report stack test data into the
Agency's database, while other regions do not. These
inconsistencies occurred because EPA guidance does not
clearly address important issues such as how and what stack
testing information should be reported.
Nonetheless, even without guidance requiring regions to
obtain stack testing information from their states, each
region should have obtained this information because it is
necessary to adequately monitor a state's air enforcement
program. Without sufficient stack testing information,
regions do not know which facilities are testing and how
often. As a result, facilities in some states may be subject to
less stringent testing requirements, or even no stack testing.
Moreover, if facilities are not required to stack test,
violations can go undetected.
It is also important to consistently conduct stack testing
because these tests are expensive. One test can cost as much
as $50,000. As a result, facilities that do not stack test have
an unfair economic advantage over those that do test. EPA
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needs to develop guidance to resolve these inconsistencies
and create uniformity among the regions and states, so that
needed stack tests are performed and monitored consistently.
Inaccurate EPA According to EPA's database, only 14 percent of the 40,000
Database major facilities in the nation had a stack test at one or more
emission units in a 10-year period. The regions are listed by
the percentage of facilities where testing occurred.
STACK TKSTS UKPOUTKI) IN A1\S
KUO.M 1989 TO 1998
Region
Number
Facilities*
if Maior
Tested
% Tested
II
3,463
21
1
VII
4,369
194
4
IX
3,164
149
5
IV
7,208
638
9
VIII
2,268
241
11
I
2,113
284
13
X
1,046
200
19
VI
4,071
779
19
III
4,218
899
21
V
7,833
2,032
26
Nationwide
39,753
5,437
14
"Includes synthetic minors
Our review determined that the stack testing information
was inaccurate, and insufficient for evaluating each states'
or regions' stack testing efforts. Because of inaccuracies in
the stack testing information in EPA's database, the
following conditions are possible. Namely, regions and
states could have over reported, under reported, or
accurately reported the number of stack tests performed.
The stack testing information in the Agency's database
indicates stack testing is occurring in some regions more
than in others. If this information were accurate, EPA could
require the regions to increase their efforts where not enough
stack testing took place.
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With very little accurate information available to determine
how many stack tests were performed in each state and in
each region, we were unable to fulfill one of the objectives of
this audit, namely:
Determine whether states were either not requiring
stack tests, or requiring stack tests and not reporting
the results to EPA.
At the beginning of this audit we had general information
that EPA's database was incomplete, but we believed that
regional offices would have the accurate information about
stack tests. However, we found that this was not true.
Without information showing which states and regions were
requiring tests as well as those not requiring them, we could
not select states to show best practices or those requiring
improvement. While we could not fulfill OECA's request in
this area, we were able to satisfy the three other objectives of
our audit. By doing so, we provided OECA and the regions
with information and recommendations needed to improve
EPA's stack testing program. Once these recommendations
are implemented, it will be possible to fulfill the uncompleted
objective. We would undertake that effort if desired by EPA.
Inaccuracies To begin our review we selected the State of New Jersey
Confirmed which has 1,187 major facilities and reported in AFS only 12
stack tests to EPA during a 10-year period. However, our
review of NJDEP indicated that the State had monitored
more than 900 stack tests in a 5-year period and had a
quality stack test program. It is noteworthy that both
Regional and State officials agreed that NJDEP was not
required to report stack tests into AFS. Region officials also
assured us that NJDEP had a quality stack test program,
but EPA personnel had no evidence to support this assertion.
For example, the Region did not have information such as,
the number of stack tests performed, those tests monitored
by the State, pass or fail rates, and the number of retests.
To ensure that stack tests are performed when necessary the
state can:
~ Require a stack test as a condition of the permit.
These tests can be required either initially after the
permit is issued, or periodically while the permit is in
effect;
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Report No. 2000-P-00019
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~ Require a stack test every five years when the permit
is renewed, if the inspector believes a facility may be
exceeding its emission limits; and
~ Perform a stack test any time it believes necessary.
However, State officials said this rarely happens.
We then performed a review of the State's involvement in the
three phases of a stack test: the protocol2, the observation of
the test, and the final report. Our review included 147 stack
test summaries for calendar year 1998 and found that 42
facilities, or 29 percent, failed to demonstrate compliance.
From these 42 facilities, 33 exceeded their emission limits
and 9 were required to be retested because the procedures
used were invalid. These results confirm the importance of
conducting stack tests to determine compliance. Also, such
information would be useful to EPA to evaluate the
effectiveness of New Jersey's program.
For the 42 files we reviewed, NJDEP found problems with 36
of the protocols submitted by the facility's test consultant. If
deficiencies in the protocol are not identified and corrected,
the results would be invalid. Consequently, because of the
State's review of the protocols prior to the test, costly retests
were avoided.
NJDEP officials believed that the most critical of stack
testing oversight is the observation of the test. By attending
the test, state inspectors can:
^ Ensure the test equipment meets requirements;
^ Evaluate the competency of the consultant performing
the test;
/ Assess whether facility operating conditions are
appropriate; and
^ Determine whether the test methods meet standards
prescribed in the protocol.
2The protocol is a technical document which describes the methods that will be used for testing the
stack and the required operating conditions at the facility.
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The observer's checklists we reviewed disclosed that State
officials required modifications to 57 percent of the tests.
Without these modifications, the tests would have been
invalid and retests needed.
Because NJDEP was very active in the protocol review and
test observation phases, their review of the final report often
required fewer resources. Moreover, disagreements and
controversies regarding the validity and enforceability of
stack test results are minimized because the State was
involved throughout the testing process.
Subsequently, we visited one of New Jersey's field offices to
review 14 enforcement files for facilities that had failed stack
tests. The State closed one facility after it failed five
consecutive stack tests. Most of the remaining facilities
applied for permit modifications to increase their emission
limits. Increases are sometimes appropriate if the initial
permit was based on inaccurate emission factors. In these
cases, a higher limit would still meet all applicable
requirements.
In conclusion, we found NJDEP had an effective and efficient
stack testing program. To the contrary, the EPA Regional
office and EPA's database had little information about the
details and activities of the State's stack testing program.
Regional We developed a questionnaire to obtain a nationwide
Responses to OIG perspective of stack testing because, through EPA's
Questionnaire inaccurate database, we were unable to identify which states
were requiring tests. We sent the questionnaire to the
Division Directors of the Air Management Divisions in each
of the 10 EPA Regions. The purpose of the questionnaire
was to obtain information about the effectiveness of each
region's oversight of state stack testing programs. It was
also intended to gain an understanding of how state stack
test programs operated. It is worth noting that most regions
solicited input from their states before responding to the
questionnaire. The following chart summarizes the
responses we received from the regions.
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Sumniiiry of lvt\i>'ionnl Ivcsponsos
Survey Questions
Yes
No
Did Not
Respond
Do states have a stack
test program?
10
0
0
Are results entered
into AFS?
/
5
4
1
Do regions receive
stack test data other
than through AFS?
10
0
0
Do regions evaluate
effectiveness of state
stack test programs?
7
3
0
Does Section 105
Grant require
reporting of stack test
activities? S
6
4
0
Are there reporting
requirements other
than AFS?
/
5
5
0
Are stack tests
required to be entered
into AFS?*
3
2
5
*This question was not specifically asked in the questionnaire,
however, it was answered by half the regions.
Our survey found an overall inconsistency in regional
oversight of state stack testing programs. For three
questions, marked with a V', approximately half of the
regions responded yes, while the other half replied no. The
even divide in answers illustrates the need for EPA to clarify
what is expected of the states by developing standardized
reporting requirements.
Some regions receive more stack test information than
others, and as a result, provided a more complete response to
the questionnaire. For the most part, regional involvement
with stack testing is on a case-by-case basis. For example, a
region may be involved when the stack test is part of testing
being performed to comply with a federal requirement or
when the test is controversial.
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Uniform Stack
Test Procedures
Needed
The survey responses disclosed numerous discrepancies and
contradictions in how regions and states operate their stack
test programs. OECA, region, and state officials have
differing opinions about: the definition of a stack test, which
tests must be reported to EPA, the type of information
reported, stack test procedures, and which facilities should
be tested.
We visited three regions to develop some of these issues
further. The remainder of this report describes these issues
in detail and demonstrates the need for EPA's attention.
... i T . ,, , i ¦ The question of which stack
Mack I csis Kcporlcd ¦ , ¦,
, • . ., ¦ tests must be reported was
Inconsistently ¦
J answered by the regional
offices several different ways.
Generally, the situations
described to us resulted in most stack tests not being
reported. The most common response was that only a stack
test performed as part of a Level 2 inspection must be
reported. However, performing a Level 2 inspection in
conjunction with a stack test is a rare occurrence. Among
other activities, a Level 2 inspection requires the inspector to
tour the plant, observe facility operations, inspect equipment
and review records. Most times, if a state inspector is at the
facility during a stack test, the reason is to observe the test,
not to conduct a Level 2 inspection. Because both are
usually not conducted simultaneously, several states do not
report any stack tests, while several other states report
minimal data.
To further complicate matters, EPA's guidance manual for
inspections refers to stack testing under its definition of a
Level 4 inspection. It describes Level 4 as a more detailed
inspection than a Level 2. We believe that any stack test
conducted would be considered a Level 4 inspection and
should be reported. However, EPA personnel offered a
different interpretation regarding what constitutes a Level 4
inspection. They defined a reportable stack test as a Level 4
inspection or greater only when every stack at the facility
was tested. Their rationale is that to assess a facility's
compliance, all stacks must be tested for all pollutants
regulated at that facility. However, when facilities have
multiple stacks, testing all stacks is a rare occurrence.
15
Report No. 2000-P-00019
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OECA officials stated that at a minimum, states should enter
stack test failures in the Agency's database. Regions also
agreed that if a facility fails the stack test, the state should
place the facility on EPA's High Priority Violator List and
notify the Agency of the failure. Similar to the Level 2
scenario, this would encompass only a small number of tests.
, ,¦ "b EPA guidance does not specifically
^ ( ^ • rY U 11'' ''r I address how to count a stack test.
CS|S Dlllci'CnllY U r\ j. j. ¦ ti l
¦ One state m a Region considers
each pollutant tested as an
individual stack test recognizing
there may be more than one pollutant tested at the stack.
Another Region counts stack tests quite differently, resulting
in a lower number of tests. At this Region, if there were five
stacks at a facility and they were tested over a three-day
period, it would be recorded as one stack test. These two
Regions could perform the same amount of tests, but EPA
data would not reflect that. For EPA to know the number of
stack tests conducted, the Agency needs to ensure all
Regions and states count tests in the same manner.
1 Regions offered a number of
\ aricly o( Slack lest I situations where states
Information Kcporlcd B provide different stack test
information, ranging from
only a notification that a test
occurred to a detailed report on both the proposed test
method and the results of the test. In response to our
questionnaire, region officials also stated that they receive
the information from the states in many different formats.
These formats include:
Quarterly printouts of all stack tests, when they
were performed, and what the results were;
Stack test summaries which are typically a
short memorandum describing the test
performed and the results of the test;
Pretest summaries describing the specific test
method(s) that will be employed and the final
report depicting the results;
16
Report No. 2000-P-00019
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Observation checklists completed by the state
inspector during the stack test; and
Data entry into AFS, either in the fields
designated for stack tests or in the Remarks
section.
It is noteworthy that several states within the same region
submit stack test information differently. While there may
be more than one way to adequately report this information,
more consistency is needed. When data is reported in many
formats, EPA can not compare state and regional stack
testing programs.
For those states that do not routinely report any stack test
data, states and regions must mutually decide on the type of
information needed and how it will be reported.
Although EPA policies for stack testing define precise test
procedures for specific pollutants, they do not address more
general procedures such as what operating conditions should
be used during the test. Consequently, some facilities are
subject to more lenient operating requirements that can
result in the stack test not accurately measuring compliance.
Different Test Conditions
i
When conducting a stack
test, the facility's operating
capacity is regulated
because of the correlation
between production and pollution. The allowable amount of
production stated in the facility's permit should reflect worst
case operating conditions at the facility. Worst case
conditions are often attained when a facility is operating at
its maximum capacity.
New Jersey stack test officials said they routinely require a
facility to be running at least 95 percent of maximum
operating capacity. The facility has to submit process data
at the time of the test to substantiate this production level.
If the company cannot meet the 95 percent production rate,
the State may modify the permit to limit production. In rare
instances, NJDEP may allow the company to run the stack
test at less than 95 percent. The State would then evaluate
the results to assess what the emissions level would be at
100 percent production. Through this analysis, the State
17
Report No. 2000-P-00019
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makes a determination if the facility has the ability to pass
the test at a maximum permitted production level. If
NJDEP determines the facility cannot pass the test, the
State will either limit the facility's production or require the
facility to retest at maximum production.
Personnel from two of the four EPA regions we visited said
their states at times allow the stack test to be conducted at
less than maximum operating capacity. In one region, they
said some facilities could damage equipment or create unsafe
conditions when operating at maximum capacity. The other
region acknowledged accepting test results at less than
maximum capacity without requiring the facility to modify
its permit. If the facility typically operates at a capacity
greater than what it was stack tested, the facility could pass
the test, but be out of compliance under normal operating
conditions. Moreover, allowing facilities to test at less than
maximum capacity creates an unfair advantage over those
states that rigidly enforce the requirement of stack testing at
full capacity.
There are times when tests may
need to be discontinued because
either the facility's equipment or,
more often, the test equipment
malfunctions. Region and state
officials said that in some instances they question the
validity of these stoppages. For example, a facility may
suspect it is going to fail, but will cite a legitimate reason to
avoid continuing the test. The Agency does not have a policy
to address these stoppages. Moreover, both regional and
state officials said it is almost impossible to prove that a
facility stopped a test for invalid reasons.
These stoppages are not required to be recorded, and as such,
EPA does not know how many times tests are stopped. It is
necessary for the Agency to have this information. An
excessive amount of test stoppages at a facility may indicate
the facility is operating out of compliance. Likewise, many
stoppages in one state could indicate that an individual
consultant or facility is stopping tests when failure is
imminent.
Another way that facilities avoid failing a stack test is by
postponing it. A facility may conduct its own stack test
18
]
Test Stoppages Arc
\o1 Recorded
Report No. 2000-P-00019
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before the scheduled test date. If a company believes it will
not pass, it will postpone the test until it can repair the
problem. Although not in favor of this practice, state and
EPA officials agree they have little recourse to prevent the
postponement.
Another reason EPA should more closely regulate stack test
procedures is the lack of controls regulating test consultants
and laboratories. EPA does not require these companies to
be accredited or meet quality standards to conduct or analyze
stack test samples. There is an ongoing effort by the
National Environmental Laboratory Accreditation
Conference to develop nationally accepted standards for
pollutants regulated under other EPA programs, including
air. EPA and some state personnel expressed concern that
without a laboratory certification program, there is less
assurance samples are properly analyzed and results are
accurate.
Before EPA can know whether
I \(M«m<» I facilities are conducting a sufficient
i
amount of stack tests, it must first
know which industries should
stack test. According to Agency personnel, there are many
factors which would indicate the need for a stack test. For
example, there would be a greater need for stack testing if a
facility:
/ Emits pollutants that are commonly measured by a
stack test, or where the only method of determining
compliance is by conducting a stack test;
^ Does not have a Continuous Emission Monitoring
System (CEMS) or other monitors which indicate
compliance;
/ Is not subject to some of the recent federal regulations
which require stack tests;
/ Has never stack tested or has not tested for a long
time; or
^ Has other indications of noncompliance, such as
visible emissions, odor, or poor maintenance.
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Currently, EPA has no procedures to readily identify those
facilities which have a greater need for stack testing. We
realize it would not be feasible to develop a comprehensive
list of facilities currently in need of a test. However, by
collecting more consistent, complete, and accurate stack test
data, EPA would make progress toward identifying and
tracking those facilities needing tests.
One EPA region has undertaken an initiative to target
facilities as candidates for stack testing. From some of the
larger facilities within that region, they chose facilities that
are regulated for two specific pollutants. From this subset,
the region selected three industries that they believe can
only determine compliance with a stack test. To further
reduce the number of candidates for stack testing, the region
focused on those facilities that do not have CEMs and for
which the regional file shows no evidence of any stack
testing. To date, the region has identified this group of
facilities likely to need a test, but due to budgetary
constraints has suspended the effort pending additional
funding.
^ ~ L Similar to identifying which
I' rcqucncy o( lesis J facilities need to be stack tested,
the frequency of testing is a
controversial issue. We received
numerous responses from EPA officials regarding how often
facilities should stack test. Frequency is influenced by many
factors such as the facility's compliance history, the type of
pollutants emitted, and the last time it was stack tested. We
believe there is no single answer to how often facilities
should test. NJDEP relies primarily on the initial permit
approval, or the permit renewal process that occurs every
five years to require facilities to stack test. If EPA more
closely tracks stack test activities, the Agency would know
which facilities have tested and which have not. Once a
reliable tracking system is established, EPA and the states
can begin to address appropriate testing frequencies for
various types of facilities.
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Report No. 2000-P-00019
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Conclusion EPA is not obtaining critical information such as how many
tests are being conducted and whether the tests are
adequate. In order for EPA to fulfill its oversight function,
more complete and consistent stack test information is
needed. The Agency needs better assurance that states are
requiring enough quality stack tests to identify violators of
the CAA. Once EPA knows the condition of state programs,
it can identify those states whose stack testing programs
need improvement.
We recognize that an effective stack testing program is
primarily the responsibility of the states and that EPA has
oversight responsibilities for state programs. However,
ambiguous criteria and an overall lack of attention to stack
testing has caused regions and states to carry out their
programs inconsistently. By achieving more uniformity in
state stack test programs, EPA will create a more level
playing field and will help improve air quality.
Recommendations We recommend that the Assistant Administrator for the
Office of Enforcement and Compliance Assurance:
1-1 Decide on the definition of a stack test; proper
procedures for conducting tests; how tests will be
counted; the type of stack test information needed; and
how it will be reported.
At a minimum, stack test information received from
states should include when a test is completed, the
results of the test, and the type of enforcement action
taken for those facilities found in violation.
1-2 Issue a policy addressing test stoppages. This policy
should include identifying those situations when it is
appropriate to stop a test.
1-3 Identify those facilities where stack testing is the only
way to determine compliance and then require stack
testing at a specified frequency.
We recommend that the 10 EPA Regional Administrators
increase oversight of their states' stack test programs as
needed. Each Region can accomplish this by:
21
Report No. 2000-P-00019
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2-1 Adequately monitoring the flow of stack test data
submitted by states. At a minimum, each Region
should receive information from states which includes
when a test is completed, the number of test
stoppages, the results of the test, and the types of
enforcement action taken for those facilities found in
violation.
2-2 Performing sufficient follow-up on stack tests,
particularly for those facilities that failed the test.
OECA's Response OECA concurred with our recommendations and agreed that
stack testing is one of the primary methods for determining
compliance with emission limits and that it is critical to its
oversight function. Achieving increased uniformity in state
stack test programs will help create a more level playing
field and help improve air quality. These activities are
integral to OECA's mission and the recommendations
provided by the OIG can be implemented within current
resources.
OECA plans to address our recommendations through the
implementation of the revised Compliance Monitoring
Strategy (CMS). OECA began the effort to revise the CMS in
response to our 1998 report, Consolidated Review of the Air
Enforcement and Compliance Assurance Program. In
revising the CMS, OECA is planning to address the issues
and recommendations we provided from both the 1998 report
and this report. OECA is working with the regions and
states to develop a CMS strategy that is responsive to our
recommendations and will make stack testing a principal
component of the CMS. Preliminary comments from the
states indicate that a satisfactory resolution can be achieved.
However, the final CMS is largely dependent on agreement
with the states on the issues discussed in our report.
OECA also attached the EPA regional comments it received
and stated that the regions generally concurred with our
recommendations. OECA did not agree with Region II's
comment that there must be significant regulatory changes
in order to implement our recommendations.
OIG Evaluation We reviewed the draft CMS strategy dated March 29, 2000
developed by OECA's workgroup. One of the primary goals
of this strategy is to provide a national policy for developing
22
Report No. 2000-P-00019
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CAA compliance monitoring programs, and delineate the
roles and responsibilities of EPA and state/local agencies.
We agree with OECA's comment that our recommendations
can be implemented without the need for significant
regulatory changes. We also agree with OECA that the CMS
is an appropriate policy to incorporate our recommendations
because stack testing is already referenced several places in
the draft. As OECA continues to work with the regions and
states developing the CMS, it can be revised to address our
detailed recommendations such as, defining a stack test,
what is a countable stack test, and how the states will
submit stack test information to EPA.
Regional Regions I, III, V, VII, and IX generally agreed with our
Responses finding and recommendations. However, Region II officials
neither agreed nor disagreed with the report because they
were not sure what level of disagreement would constitute
nonconcurrence. The regional responses are summarized
below, followed by our evaluation of their comments.
Regions I, III, and IX agreed with our finding and
recommendations, while Region VII generally concurred with
the reported finding, but did not comment on the
recommendations. Region V agreed with the report's
conclusion that stack testing is a primary method for
determining compliance with emission limits. However,
Region V did not believe stack test procedures or reporting
requirements needed to be included in the CMS policy.
Overall, the regions agreed that there needs to be a national
policy addressing stack test activities. However, the regions
varied as to the specific stack test activities which need
clarification. Regions V and VII believed the national policy
should address test stoppages and test frequency. Region I
thought national guidance needed to better define stack test
procedures and quality assurance controls. Region IX
responded that all of the stack test activities discussed in
this report should be clarified.
Regions III and IX emphasized that in order to effectively
implement a national enforcement policy such as the CMS,
air enforcement activities need to be included in the Section
105 grant process.
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Report No. 2000-P-00019
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According to Region II officials, the draft report only
addressed the quantity of stack tests, but fails to address the
quality of the stack tests. They further suggested that the
OIG should have undertaken an investigation of the quality
and effectiveness of additional state and regional stack test
oversight programs, if desired by EPA.
Region II believes that regulatory change is needed to
require: periodic retesting, protocol submittal, acceptable
operating conditions during testing and test stoppages, and
the reporting of stack tests.
OIG Evaluation The regions generally agreed that EPA and the states need
to issue a national policy to ensure more consistent and
uniform stack test activities. However, regional responses
show that differences exist about what stack test activities
need to be addressed in the revised CMS policy. OECA, EPA
regions, and the states must mutually agree on what stack
testing information needs to be addressed in the revised
CMS. Some regions responded that they have their own
operating procedures for implementing the stack test portion
of their air enforcement program. After the national stack
test guidance is finalized, the regions must revise their own
operating procedures accordingly.
In response to Region Ill's and Region IX's comments
regarding Section 105 grant funds, OECA and OAR have
recently decided that a portion of Section 105 funds will be
linked to air enforcement activities. OECA is currently
working with OAR to determine the proper fraction of
Section 105 grant funds that should be earmarked for state
and air enforcement activities.
We disagree with Region II's comment that the quality of
stack testing oversight was not addressed in the draft report.
The section of this report entitled "Inaccuracies Confirmed"
emphasizes a quality stack testing program. We did
evaluate the quality of NJDEP's stack test program. As
stated in our report, EPA's AFS database indicated that
NJDEP may not have had a quality program. We found the
opposite, which demonstrated that AFS does not always
accurately depict a state's stack test program. Without
information showing which states and regions were
requiring tests as well as those not requiring them, we could
not select states to show best practices or those requiring
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Report No. 2000-P-00019
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improvement. For this reason, we did not evaluate
additional states and regions during our review. Therefore,
until EPA obtains accurate data from the states, AFS is not a
reliable source for evaluating a state's stack test program.
NJDEP Response NJDEP was pleased with the positive findings concerning its
stack test program. While NJDEP concurred with the need
for a defined EPA oversight program on a national level, they
could not emphasize enough that EPA oversight should be
achieved through limited and efficient reporting. Also,
NJDEP believed that data reporting requirements for stack
testing should not be mandated by EPA until both EPA and
the states have jointly developed and agreed to such
requirements on a national level. EPA should ensure that
the reporting requirements are not so prescriptive as to
effectively eliminate individual states' discretion to direct
resources to priority issues.
NJDEP requested that the stack test guidance not be a
separate document. NJDEP relies heavily, as do other
states, on the Performance Partnership Agreement (PPA)
process to articulate New Jersey and EPA direction and
commitments for the upcoming years. The PPA also
establishes the parameters for the relationship between the
two agencies, which includes such things as data exchange.
Therefore, any requirements (data reporting or otherwise)
related to stack testing should be contained within the PPA,
rather than within a separate guidance document.
OIG Evaluation OECA's workgroup is currently working with EPA regions
and state officials to revise the Agency's Compliance
Monitoring Strategy (CMS). The workgroup plans to address
our finding and recommendations. Perhaps NJDEP should
consider actively participating in this workgroup to better
ensure its concerns are sufficiently addressed in the
workgroup's final decision-making.
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26
Report No. 2000-P-00019
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APPENDIX 1
OECA'S RESPONSE TO DRAFT REPORT
27
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28
Report No. 2000-P-00019
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
< X
OFFICE OF
\ T ENFORCEMENT AND
J* COMPLIANCE ASSURANCE
June 26, 2000
MEMORANDUM
SUBJECT: OECA's Response to OIG's Draft Report of EPA's Oversight of State Stack Testing
Programs
FROM: Sylvia K. Lowrance, Principal Deputy Assistant Administrator
Office of Enforcement and Compliance Assurance
TO: Carl A. Jannetti
Divisional Inspector General for Audit
Mid-Atlantic Division
The following is OECA's response to the OIG's Draft Report of EPA's Oversight of State
Stack Testing Programs. These comments have been developed and coordinated with the Office
of Compliance and the Office of Regulatory Enforcement.
OECA concurs with comment on the OIG's recommendations in the draft report. We agree
that stack testing is one of the primary methods for determining compliance with emission limits.
We also agree it is critical to our oversight function that we receive more complete and consistent
stack test information. Achieving increased uniformity in state stack test programs will help create
a more level playing field and help improve air quality.
While we have identified resource concerns in other OIG reports, we recognize that the
actions suggested in this report are central to the air enforcement program's ability to assess
compliance which will avoid excess emissions. Because these activities are integral to OECA's
mission, we will be able to implement the recommendations suggested by the OIG within current
resources.
OECA plans to address the OIG's recommendations through the implementation of a revised
Compliance Monitoring Strategy (CMS). OECA began the effort to revise the CMS in response
to the OIG's 1998 report, Consolidated Review of the Air Enforcement and Compliance
Assurance Program. In revising the CMS, we are attempting to resolve many of the issues you
raised in your 1998 report. Through our efforts on revising CMS, we also hope to resolve the
recommendations in your recent report on stack testing. While the revised CMS is still in draft,
we are working with the Regions and states to develop a strategy that is responsive to the
Internet Address (URL) • http://www.epa.gov
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2
recommendations of your Office. Preliminary comments from the states indicate that a satisfactory
resolution can be achieved. However, the final CMS is largely dependent on agreement with the
states on these issues. A recent draft of the CMS has been shared with your Office.
One of your recommendations is to identify those facilities where stack testing is the only way to
determine compliance and then require stack testing at a specified frequency. We agree that stack
testing is particularly valuable for those emission points where there is no other way to make
compliance determinations. Consequently, we are working to include this concept into the revised
CMS. However, rather than identifying specific emission points that rely on stack testing to
determine compliance and specifying a testing frequency, our goal is to work with the Regions
and states to make stack testing a principal component of the CMS.
Your Office also recommended that we develop a policy to address test stoppages. The revised
CMS does not currently address this recommendation. However, we share your concern on this
issue and we will work on a policy on how stack tests should be conducted.
We have also attached the comments that we received from our Regional offices. We have
received comments from Regions 1, 2, 3, 5, 7 and 9. In general, the Regions concurred with the
OIG's recommendations. Some Regions concurred with comment and offered specific changes to
clarify statements in your draft report. Region 2 commented that the recommendations cannot be
implemented without significant regulatory changes. OECA does not anticipate the need for
regulatory changes to implement the OIG's recommendations or the revised CMS.
In closing, we appreciate the opportunity to comment on the draft report. We will continue to
work with the Regions and states to develop a CMS that is responsive to your recommendations.
Should you have any questions, please contact Greg Marion, OECA's OIG Audit Liaison at (202)
564-2446.
Attachment
cc: Regional Administrators I - X
-------
APPENDIX 2
EPA REGIONAL RESPONSES TO DRAFT REPORT
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32
Report No. 2000-P-00019
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 1
1 CONGRESS STREET, SUITE 1100
BOSTON, MASSACHUSETTS 02114-2023
OFFICE OF THE
REGIONAL ADMINISTRATOR
MEMORANDUM
DATE: May 31, 2000
SUBJ: New England Region Comments on (April 26, 2000) Draft Report of EPA's Oversight
of State Stack Testing Programs Report Number 1999-000310
FROM: Mindy Lubber, Regional Administrator
New England
TO: Steven Herman, Administrator
As requested in the above referenced audit we are providing the following written response to the
draft to your office. We have also been requested to send a copy of our comments to the Mid-
Atlantic Division of the OIG.
Overall, the staff at the New England Region feels the report presents the situation accurately and
makes good recommendations. We had the following specific comments:
Page 1, Background, first paragraph, last line:
Insert the word "air" before pollution sources, to make it clear that only air sources are
included.
Page 2, Description of a Stack Test, first paragraph, last sentence:
Add nitrogen oxide to the list of pollutants.
Page 3, Second paragraph, first sentence:
Change the sentence to read, "Whenever possible, regulatory personnel should be
present during enough of the testing to ensure the test is valid."
Page 3, third paragraph, third sentence:
Change the sentence to read, "For example, a state or EPA Order. . ."
Page 4, second paragraph, first sentence:
Change the sentence to read, "There are two reasons why stack tests should be conducted
at facilities regulation by limits based on emission factors."
Enforcement and _ _ , tnce Assurance (2201 A)
Internet Address (URL) • http://www.epa.gov/regionl
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Page 4, end of page:
Most facilities also conduct quarterly cylinder gas audits and RATAs
Page 9, first paragraph, first sentence:
Change to read, "Because of lack of guidance. EPA and the states are not consistently
implementing . . "
Page 9, last paragraph, first sentence:
Change to read, "According to the EPA's database, which is not accurate, only 14 . . "
Page 10, table:
Note that "major" includes synthetic minor sources.
Page 16, second paragraph, first sentence:
This sentence says Regions agreed that at a minimum, failed stack tests must be entered.
The New England Region feels that all stack tests, not just failures, need to be entered, in order to
assess level of stack testing activity.
Page 17, third paragraph:
The report says that for those states that do not routinely report any stack test data, state
and regions must mutually decide on the type of information needed and how it will be reported.
The New England Region believes this would be much easier if there were national guidance on
these questions.
Page 20, checklist:
Add, "Highly efficient control devices, where slight degradation in control would cause
orders of magnitude increases in emissions."
Page 21, second paragraph, first sentence:
Change the sentence to read, "The primary vehicle for controlling air emissions from stationary
sources in the United States ..."
Page 21, second paragraph, last sentence:
Change sentences to read, "Stack testing is one of the primary methods for . .
Page 21, 1.1:
The New England Region agrees with this recommendation, but suggests that the
definition of stack test procedures should include development of a quality assurance plan by the
stack tester.
9
In addition, to the minimum requirements listed for stack test information provided by
states, the New England Region would include
Unit # tested
2
-------
•
reference method used
/
pollutant(s) measured
/
whether the test was valid
/
whether the source passed or failed
/
the testing firm
/
reason for test (114 requests, permit condition)
/
date of completion of the test
Page 22:
The New England Region suggests a third recommendation. To address the problems
described on page 19, EPA needs to establish a certification system for labs, or establish a process
for quality assuring samples. Additionally, all test protocols should have Quality Assurance Plans.
If you have questions about the comments provided by the New England Region, please
contact me. You may also call Arnie Leriche or Tom McCusker, of my staff, at (617) 918-1748,
and (617) 918-1862, respectively.
cc: Carl Jannetti, Divisional Inspector General for Audit, Mid-Atlantic Division (3AI00)
3
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 2
DATE: May 25, 2000
SUBJECT: Office of Inspector General (OIG) Report of EPA's Oversight of State Stack Test
for Enforcement and Compliance Assurance
Attached is Region 2's response to the findings and recommendations of the Office
of the Inspector General's draft report on EPA's Oversight of State Stack Testing
Programs. We have contacted the New Jersey Department of Environmental
Protection and requested that they too submit comments on those sections of the
draft report that pertain to state activities.
If you have any questions regarding these comments, please let me know, or have
your staff contact Barbara Pastalove of the Policy, Planning and Evaluation Branch
at (212) 637-3570.
Attachment
CC: Carl Jannetti, OIG
Patrick Milligan, OIG
FROM: Herbert Barrack, Assistant I
for Policy and Manageme
TO:
Steven A. Herman, Assistar
Rich Biondi, OECA
Fred Stiehl, OECA
-------
General Comments
The basic, and overriding, problem with the Draft Report is that it recommends policy solutions
for deficiencies that require regulatory change, and it ignores two important areas that can be
addressed by policy, though they will require serious resource evaluations,:
! Federal regulations do not require periodic retesting, do not directly require protocol
submittal, do not require specific operating conditions during testing, and do not address
test stoppage.
The policy remedies suggested in the Draft Report might be inappropriate in light of the
recent court decision of Appalachian Power Company vs. US EPA regarding periodic
monitoring, when regulatory changes are needed.
! OECA's policy and AIRS capabilities do not combine to provide consistent, workable
direction for tracking and reporting of stack testing results. The Draft Report fails to
address this topic, but it should.
! The quality of stack test project oversight is just as important as the quantity. The Draft
Report does not address this, but it should.
! OIG's instructions to the Regions state that the Regions should address the factual
accuracy of the draft report and indicate concurrence or nonconcurrence with each draft
finding and proposed recommendation. However, it is very difficult to figure out exactly
what constitutes a draft finding. It is also difficult to determine what level of disagreement
should constitute nonconcurrence. This is also true for the recommendations, in which
substantial comment on one aspect of a given recommendation may or may not constitute
nonconcurrence with the entire recommendation. The following comments do not,
therefore, address the issue of concurrence.
! An additional over-arching comment concerns OECA's charge to OIG, and an appropriate
response irrespective of the OIG's findings in the Regions and the states. The Federal
emission control regulations (as found in 40 CFR Parts 60 (NSPS), 61 (NESHAPS), and
63 (MACT)) all require initial stack testing for most facilities, but do not require periodic
or routine re-testing except for a very small minority, and do not require any notification
to EPA or the delegated states in the event of voluntary re-testing. In addition, there is no
concrete or consistent guidance from OECA concerning the frequency of re-testing, and
only ambiguous or difficult guidance concerning reporting. While some states may require
periodic re-testing and protocol submittal, and while some may collect test information in
such a way that reporting to EPA would be cost effective, none of this is required by
Federal rules. The sum total of this situation is that OECA wants and expects to receive
time-appropriate information about testing, while the agency regulations do not require or
even suggest either the testing or the reporting. One consistent remedy would seem to be
significant rulemaking, at the national level.
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Specific Comments on IG Stack Test Draft Report
Chapter 1
Purpose -
1st para, 2nd sentence - delete the word "performing" and replace it with "reporting and
overseeing"
In general, neither the Regions nor the states PERFORM stack tests (with rare
exception). Instead, they require and then oversee the performance of tests by the
regulated community and their contractors/consultants. This same comment applies later
in the report as well. "Overseeing" should replace "performing" throughout.
Phases of a stack test:
2nd para, - Insert the following after the 2nd sentence "The protocol is, essentially, a Quality
Assurance Project Plan (QAPP), designed to define the objectives of the test, and the
methodologies to be employed, including appropriate QA and Quality Control procedures,
and to ensure that those methodologies will produce useful results.
2nd para, existing 3rd sentence should be changed as follows: The protocol should be made available
... prior to the test, although Federal regulations do not directly require submittal of a stack
test protocol to EPA or the delegated states.
3rd para, 2nd sentence should be modified as follows: Depending on the type of test, samples may
be sent to a laboratory for analysis, and regulatory personnel may be present as well. In
addition, the regulatory agency may require the analysis of audit (performance test) samples.
Continuous Emission Monitoring System
2nd para, delete the following: "EPA has not yet developed performance specification methods for
other types of pollutants, such as particulate matter. For pollutants such as these" and replace it
with - "Reliable CEMS are not yet available for all regulated pollutants, and some regulations
require the use of CEMS but do not allow them to be used for compliance determinations. In
situations such as these,"
An important deficiency in the OIG draft report is that it is concerned primarily with the quantity of
stack test projects overseen by the states, and less with the quality and usefulness of the oversight that is
performed. While the quantity of tests performed and reported is important, the quality of those tests is
equally important. Thus, the effectiveness of a states oversight program is just as important as its
completeness. There is nothing wronk with the focus of the OIG investigation. The problem is that the
report does not put the investigation into proper context. It is recommended that a new, brief section
titled "The Overall Stack Test Oversight Programs "
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be added prior to the section titled "Scope and Methodology as follows:
The Overall Stack Test Oversight Programs
The oversight conducted by the regions and the states of stack test projects
performed by and/or for the regulated community generally involves some or
all of the following steps: require a test, review and approve the test protocol,
observe the test, review the test report, pursue enforcement action, if
appropriate, report to EPA. This audit focused quantitatively on the
consolidation of the first five steps under the umbrella of "oversees stack
tests", and the last step, reports to EPA. This in no way is intended to
diminish the importance of each of the first five steps or the importance of
the quality and effectiveness of their performance. Based on our review, there
is evidence, much of it circumstantial, that some states and Regions conduct
high quality and effective oversight of individual stack test projects. There
may also be states and Regions that do not. We could undertake an
investigation of the quality and effectiveness of state and regional stack test
oversight programs, if desired by EPA.
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Chapter 2
Inaccurate EPA Database
4th para, 3rd sentence - Without information showing which states and regions were
performing tests as well as those not performing them, we could not select states to show
best practices or those requiring improvement. This statement is not true. The OIG was
able to go to New Jersey and assess its program sufficiently, concluding "we found
NJDEP had an effective and efficient stack testing program ". Based on the
questionnaire responses from the regions, the OIG could have conducted similar
investigations in other states, or at least could have submitted questionnaires to states.
Thus, the statement should be deleted.
Inaccuracies Confirmed
1st para, 4th sentence - Region officials also assured us that NJDEP had a quality stack test
program, but EPA personnel had no evidence to support this assertion. This statement is
untrue. It is true that the Region had no quantitative evidence of the state's stack test
oversight program, but the Region had a great deal of qualitative evidence, collected
over many years, indicating the high quality of the state's program. The Region had dealt
formally and informally with members of the state stack test oversight group over many
years, confirming their level of expertise, responding to their questions, consulting on
testing projects, and reviewing final and draft documents concerning test projects.
Variety of Stack Test Information Reported
4th para, 1st sentence - delete the word "policies" and replace it with "regulations", delete
the word "address" and replace it with "define".
The NSPS regulations, the most important and widely applied of EPA's air compliance
regulations, address operating conditions, in 40 CFR 60.8(c), but do not so specify,
because of differences among facilities, situations, conditions, etc. This also applies to the
following section, Different Test Conditions.
Test Stoppages Are Not Recorded
4th para - The final paragraph in this section does not belong here. Also, the statements
concerning the National Environmental Laboratory Accreditation Conference (NELAC)
are incomplete. NELAC, working with EPA, is well on the way toward developing
procedures for certifying not only the laboratories but also the field crews that
conduct stack tests. While participation will be voluntary on the part of the states,
testing in participating states will be required. Over time, this will likely enhance the
quality of stack tests performed.
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Facility Coverage
1st para, 4th check mark - "a long time" should be deleted and replaced with "many years."
It would be helpful for the OIG to address how many years would be considered too many.
Conclusion
1st para, 4th sentence - delete "is the primary method for" and replace it with "and CEMS
operation are the two primary methods for" and add the following sentence:
Regulations generally require stack testing for determining initial compliance status,
and some require periodic testing or CEMS operation (or other parametric
monitoring) for determining continuing compliance status. For all facility units not
currently required to test periodically, or that do not have adequate periodic
monitoring, compliance assurance monitoring or any other form of credible
evidence, specifically required stack testing would constitute the only available
definitive compliance determination procedure.
Recommendations
OIG Recommendation
1.1 Decide on the definition of a stack test; proper procedures for conducting tests; how
tests will be counted; the type of stack test information needed; and how it will be
reported.
At a minimum, stack test information received from states should include when a test is
completed, the results of the test, and the type of enforcement action taken for those
facilities found in violation.
Region 2 Response
1.1 It is not at all clear what is meant by the phrase "proper procedures for conducting
tests. " As stated elsewhere in the report, the methods are almost always specified by EPA
and/or the states. If it is intended to mean "specify required operating conditions during
the tests, " then this would require a major regulation change that is far more significant
than the policy directives apparently intended in the recommendations. This
recommendation needs to be clarified.
OIG Recommendation
1.2 Issue a policy addressing test stoppages. This policy should include identifying those
situations when it is appropriate to stop a test.
Region 2 Response
1.2 EPA has no current regulatory authority to order a facility/contractor to continue
testing when they wish to terminate a test for whatever reason. Such an authority would
require a significant change in regulations. Perhaps the recommendation could be
reworded as follows: The policy should also address what a state or a region is
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empowered and expected to do when the facility/contractor proposes to terminate a
test inappropriately
OIG Recommendation
2. We recommend that the 10 EPA Regional Administrators increase oversight of their
states' stack test programs as needed. Each Region can accomplish this by:
Region 2 Response
2. As stated earlier, this draft report does not emphasize the quality and effectiveness of
state stack test programs, focusing instead only on the quantity and reporting of the tests.
It is suggested that an additional bullet be added as follows:
2.3. Continuing due vigilance in overseeing the quality of state stack test
oversight programs, despite the fact that this issue is not covered by the
findings of the report, is an integral part of a properly administered stack test
program.
OIG Recommendation
2.2 Performing sufficient follow-up on stack tests, particularly for those facilities that
failed the test.
Region 2 Response
2.2 - delete "Performing" and replace it with "Ensuring that the states perform"
The failure of the Agency to track stack test activity was the primary driving force for the
OIG audit. This shortcoming is mentioned throughout the draft report, including in the
section titled "Frequency of Tests, " which states that "Once a reliable tracking system is
established... "However, none of the recommendations address this issue. While
instituting and implementing an effective and consistent tracking system may well be very
difficult and expensive, it still seems appropriate for the OIG to include it in the
recommendations of its audit report.
It is suggested that the recommendation not be prescriptive, instead leaving it to OECA,
the Regions, and the states to develop and implement an effective system that will provide
the necessary information without consuming vast amounts of resources. A starting point
might be to survey the states that already have internal tracking and reporting systems,
and then attempt to develop a workable consensus. However, resources will be a major
factor in the implementation of any system.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION III
1650 Arch Street
Philadelphia, Pennsylvania 19103-2029
May 30, 2000
SUBJECT
FROM:
TO:
Draft Inspector General Report, " EPA's Oversight of
State Stack Testing Programs" (Report Number 1999-
000310) A i
Bradley M. Campbel/ I j j /
Regional Administrate//3R.A00)
Steven A. Herman, Assistant Administrator
for Enforcement and Compliance Assurance (2201 A)
Thank you for the opportunity to comment on the draft report of State Stack Testing
Programs (Report Number 1999-000310). As one of the three principal Regional Offices that
were the subject of the audit, we have rather strong opinions on the importance of using stack
testing as an effective tool in making compliance determinations. It is our understanding that
during negotiations with the State and Territorial Air Pollution Program Administrators
(STAPPA) and the Association of Local Air Pollution Control Officials (ALAPCO) on the revised
Timely and Appropriate Policy that this issue first surfaced as a possible concern. Two mid-
western agencies noted at the time that they were finding an unexpectedly high noncompliance
rate resulting from recent stack test findings. Since facilities have the ability to prepare in advance
for the test, it is thought to be rather uncommon for a facility to record a violation. This however
proved contrary to what they found.
During the course of the Inspector General's investigation, we canvassed each of our
grantee agencies concerning State stack testing capabilities. There were three relevant issues we
found regarding that capability, and EPA's oversight thereof. First, there are no national policies
that pertain directly to oversight of State or local agency stack testing programs. Each Region III
grantee agency was found to have a state/local stack testing program. Sources are commonly
tested upon start-up to determine initial compliance, and are tested as an obligation for
enforcement settlement purposes when a facility is found to be in violation. However, we do not
believe that any grantee agency looks to determine periodic, and continued, compliance of major
sources where the only compliance reference method is determined through stack testing. This, in
part, is due to the wide-spread use of continuous emission monitors (CEMs) in Region III.
Therefore, oversight of compliance in this Region is devoted, in large measure, to review of CEM
data from the State and local agencies. We have been far more concerned about continued
compliance than infrequent compliance tests that have been known to be passed with relative
ease.
Customer Service Hotline: 1-800-438-2474
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Secondly, it is important to note that since 1994 when OECA was formed, there were no
longer any line items for enforcement in the Office of Air and Radiation's (OAR) grant process. It
was at that time that States began to seriously push back on EPA's annual enforcement grant
commitments. To make matters worse, beginning in Fiscal Year 2000, it was made perfectly clear
that there are no Section 105 Clean Air Act grant dollars provided to State and local Agencies
that are earmarked for air enforcement activities. As you well know, this issue was prominently
discussed in the Inspector General's audit report titled "Consolidated Report on OECA's
Oversight of Regional and State Air Enforcement Programs" dated September 25, 1998. It was
suggested that OECA "...work with OAR to earmark Section 105 grantfunds to (air)
enforcement. This will enable the EPA regions to reinforce to the states that (air) enforcement
is an Agency priority. " As the report notes, OECA's failure to participate in the grant process
has already affected the Regions' ability to leverage the states to comply with enforcement
priorities. Therefore, any grant commitment related to stack testing is more of a result of
successful grant negotiations by the respective Regional Office and has no force of regulatory
backing. Should any State or local Agency decide not to carry-out any of the implied
commitments, the Region can not threaten to withhold grant money for failure to implement.
Lastly, Region III was successful in procuring contractor money from OECA in Fiscal
Year 1999 that was used to initiate a facility inspection targeting project using stack testing as the
basis. This will be accomplished by focusing on various industrial sectors subject to stack testing
provisions under Federal and/or State regulations. Once these facilities are identified and
cataloged by industrial sector, Region III will focus on identifying those facilities which have
performed stack testing, and those facilities which have not, in recent years. The targeting strategy
will also identify any stack testing inconsistencies within Federal and State regulatory programs.
At the conclusion of the project, we expect to have a report documenting our findings and,
depending upon the results, may move towards targeting facilities/sectors for stack testing under
Section 114 authority. We hope that this work will be used as a national model for the other nine
EPA regional offices. This compliance assurance tool will be used to further enhance continued
compliance of the approximately 29,000 facilities in Region III.
Findings and Recommendations:
We are in total agreement with each of the Inspector General's findings and recommendations.
The Draft Report captures each of the major impediments leading to effective EPA oversight of
State Stack Testing Programs, and reflects Region Ill's personal experience. Therefore, with
regards to the specific recommendations, we offer the following comments.
Recommendation 1 We recommend that the Assistant Administrator for the Office of
Enforcement and Compliance Assurance:
Decide on the definition of a stack test; proper procedures for conducting tests;
how tests will be counted; the type of stack test information needed; and how it will
be reported.
At a minimum, stack test information receivedfrom states should include when a
test is completed, the results of the test, and the type of enforcement action taken
for those facilities found in violation.
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We fully support this recommendation. As noted above, we are aware that there is no
national consistency and believe efforts to bring about such change will be an
enhancement. We agree with the minimum requirements recommended by the OIG to be
included for completed tests. The States in Region III do submit stack test reports in
varied formats. They provide a listing of the facilities and the source(s) tested with the test
report/results on a monthly or quarterly basis. Region III grantee agencies are required,
through their federal grant agreements, to input such data into the national data base.
However, as noted above, our success with grant negotiations has been severely
compromised with lack of a regional line item for air enforcement activities in the OAR
budget process. We are uncertain what affect, if any, a national enforcement policy will
have once written without federal Clean Air Act monies being earmarked for its execution.
Recommendation 1.2 Issue a policy addressing test stoppages. This policy should include
identifying those situations when it is appropriate to stop a test.
We are in support of having a policy on stopping a stack test in mid-stream if it appears
that the company is aware that should the test continue they are likely to fail and be found
in violation. During the course of the audit, it was learned that one of the EPA Regions,
and one State, allow a facility to stop the stack test prior to its conclusion if it had
indications that it is likely to fail. This is contrary to Region III policy where once a
compliance test commences, it must be completed unless there is a disruption or upset
somewhere in the plant, or more commonly, part of the stack testing equipment breaks or
malfunctions. In speaking to the OIG concerning this audit, we learned that one regional
official indicated that on average 20% of all stack tests conducted in their region cease
with no real justification. With no national policy preventing this type of behavior, we will
never know the "real" noncompliance rates involving stack testing. In the case of the
State, officials indicated that they allowed tests to stop because there are no EPA
regulations or policies that they can point to which precludes a stack test from stopping
regardless of the reasons.
Recommendation 1.3 Identify those facilities where stack, resting is the only way to determine
compliance and then require stack testing at a specifiedfrequency.
Again we are in agreement with the OIG concerning this recommendation. As noted
above, in Region III we have already undertaken a project designed to help identify the
universe of sources where stack testing is the only means available for determining
compliance with the applicable emission limit. And although the Office of Compliance has
begun to address the frequency issue in the revised Compliance Monitoring Strategy now
before STAPPA, ALAPCO and the Regional Offices for comment, we are uncertain what
impact the Appeals Court ruling in Appalachian Power Company et al v. EPA will have if
we try to impose stack testing on a frequency more onerous than provided for in the
underlying state or federal rules. While we support the effort to try all available options, it
seems that we must inevitably turn our attention to requiring a stack testing frequency in
our rules at the time of promulgation.
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facilities that failed the test.
Again we support the above recommendations by the OIG. For both recommendations 2.1
and 2.2, we believe that the currently proposed Compliance Monitoring Strategy dated
March 29, 2000, is the proper vehicle to address these recommendations. The proposal is
attempting to update the compliance monitoring programs of the state/local agencies and
the EPA regions. A component of the revised CMS Policy is intended to place greater
emphasis on the stack test programs when no other means of certifying or determining
compliance exist. Current language in the proposed policy also contains mechanisms for
enforcement tracking and targeting.
Thank you, again, for the opportunity to express Region Ill's comments regarding the Draft Audit
Report on EPA's Oversight of Stack Testing Programs. If you have any questions, please contact
Bernard Turlinski, Associate Director, Office of Enforcement and Permits Review, Air Protection
Division at 215-814-2052.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 5
77 WEST JACKSON BOULEVARD
CHICAGO, IL. 60604-3590
REPLY TO THE ATTENTION OF
(R-19J)
May 26, 2000
MEMORANDUM
SUBJECT: Draft Report of EPA's Oversight of State Stack Testing Programs
FROM: Francis X. Lyons
Regional Administrator
TO: Carl A. Jannetti
Divisional Inspector General for Audit
Mid-Atlantic Division (3AI00)
Thank you for providing Region 5 with a copy of the Draft Report of EPA's Oversight of State
Stack Testing Programs. Region 5 agrees with the report's conclusion that stack testing is a
primary method for determining compliance with emission limits. Within the Region, both State
air programs and Region 5's Air Enforcement and Compliance Assurance Branch (AECAB)
emphasize the importance of stack testing.
With regard to the report's recommendation for increased oversight of state stack testing
programs, AECAB's current partnership with its States promotes an efficient stack testing
program which includes protocol review, stack test observation, final report evaluation, and
"follow-up on stack test results". We have found this partnership to be an effective means of
sharing State/Federal expertise in stack testing. The report's finding that regional involvement
with stack testing is on a case-by-case basis is correct. Consequently AECAB does not have data
for all stack tests that are done. AECAB does not see this as an area of concern in terms of
quality of stack tests and does not agree with the reports findings that "Stack Test Information
Reported" and "Test Stoppages" are State deficiencies in stack testing. Rather, we view it as
missing data that could be valuable not only in evaluating the compliance history of source
categories throughout the Region but also in establishing future enforcement strategies.
Therefore, AECAB does agree with the report's findings that "Facility Coverage" and "Frequency
of Tests" are problems that could be addressed with more complete
Recycled/Recyclable ~ Printed with Vegetable Oil Based Inks on 50% Recycled Paper (20% Postconsumer)
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2
stack test information. Accordingly, in the upcoming 105 Grant process AECAB will negotiate
the requirement for States to submit stack test data for all stack tests.
Concerning the report's recommendations on issues involving the Office of Enforcement and
Compliance Assurance, Region 5 agrees with the report's recommendations for national policies
on stack test stoppages and stack testing frequency. However, Region 5 does not believe that the
procedures for conducting tests, the type of stack test information needed, and how it will be
reported need to be modified. The test methods contain the procedures and can be found at 40
C.F.R. Part 60, Appendix A. The type of information needed and how it will be reported are
found both in the test methods and in the standard applicable to the source that is being stack
tested.
If you have questions regarding these comments please contact me or Brent Marable of AECAB
at (312) 386-6812.
Francis X.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION VII
901 N. 5™ STREET
KANSAS CITY, KANSAS 66101
OFFICE OF
THE REGIONAL ADMINISTRATOR
May 31, 2000
MEMORANDUM
SUBJECT: Response to "Draft Report of EPA's Oversight of State Stack Testing
Programs, Report Number 1999-000310"
FROM: Dennis Grams, Pfy'/
Regional Admipfstrat^
TO: Steven A. Herman, Assistant Administrator
Enforcement and Compliance Assurance. (2201 A)
This memorandum is Region 7's response to the recommendations outlined in the
memorandum "Draft Report of EPA's Oversight of State Stack Testing Programs, Report
Number 1999-000310", dated April 25, 2000.
Region 7 generally agrees with the reported findings. Region 7 has a comprehensive
Standard Operating Procedure (SOP No. 2312.8C) which defines, outlines, and establishes
uniform procedures concerning activities related to air pollution source performance tests and
continuous emission monitoring system performance evaluations and certification tests. This SOP
was provided to the Inspector General during their October 1999 visit. Additionally, Region 7
has uniform procedures for the preparation for, performance of, and reporting on an audit of air
pollution source performance test observation and related activities of a state or local air
pollution control agency or an Environmental Protection Agency contractor.
cc: Carl A. Jannetti, Divisional Inspector General for Audit
Mid-Atlantic Division (3AI00)
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
I REGION IX
35 ;;
% 75 Hawthorne Street
San Francisco, CA 94105
1" OPTIONAL FOIHM SB (7-BQ)
FAX TRANSMITTAL
T OFFICE OF THE
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Region 9 has also worked with our permitting agencies to assure that stack testing is considered
and required when appropriate for Title V Periodic Monitoring . In additions, we have supported
alternative parameter monitoring when stack testing is impractical, such as for very small units.
We are recommending that any national guidance from OECA or OAQPS support this approach
as an essential element of Periodic and Compliance Assurance Monitoring (CAM) for Title V
permits.
Concurrence with Comment on Report and its Recommendations:
We concur with all of the findings for both Recommendations 1 and 2. We agree that
OECA should issue national guidance to better define: stack test procedures, how to count tests
(including numbers of unit tests that would equal one credit for a stack test and also how multiple
pollutant test should be counted), what standard test information is needed in documentation,
what to report to AIRS, a de minimus level for reporting, and reporting/testing frequency. These
have all long been in need of national clarification in a single guidance document. The new stack
test guidance should also address test stoppages and clearly identify when issuance of a violation
notice must be made in lieu of making repairs or adjustments.
In addition, we concur with the OIG that OECA should conduct a study to identify the
universe of facilities "where stack testing is the only way to determine compliance." Like several
other regions, we are concerned that there may be too large a number of small units subject to
annual source testing if the requirements is left as broadly defined as is quoted above. Instead, we
recommend the stack testing guidance focus on large emission units and those with variable
emission control effectiveness.
Finally, we would like to see OECA work closely with the Office of Air and Radiation
(OAR) and the Office of General Counsel (OGC) to find acceptable ways to restore Section 105
grant work elements and assistance for annual enforcement workplans and for the support of
enforcement targeting and reporting commitments. Theo OIG recommended this in a September
25, 1998 report which said OECA should: "work with OAR to earmark Section 105 grant funds
to (air) enforcement," because that would "enable the EPA regions to reinforce to the state that
enforcement is an Agency Priority." Alternatively, if OGC feels that all enforcement and
enforcement-related reporting at major sources must be funded with Title V fees, we believe that
a strong regional oversight of monitoring (periodic monitoring and CAM) is essential.
If you or your staff have any questions regarding these comments, please contact Steve
Frey at (415)744-1140.
cc: Director, Office of Compliance (221 A)
Director, Office of Regulatory Enforcement (2241 A)
Audit Liaison - Office of Enforcement and Compliance
Assurance (2201 A)
Deputy Assistant Inspector General for Internal Audits (2421)
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APPENDIX 3
NJDEP RESPONSE TO DRAFT REPORT
55
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56
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JiHatc ai HsrsciT
Department of Environmental Protection
Robert C. Shinn, Jr.
Commissioner
Christine Todd Whitman
Governor
CN 402
Trenton, NJ 08625-0402
Tel. # (609) 292-
2885
Fax # (609) 292-7695
May 26, 2000
Carl A. Jannetti
USEPA Divisional Inspector General for Audit
Mid-Atlantic Division (3A100)
1650 Arch Street
Philadelphia, PA 19103-2029
Re: EPA Oversight of Stack Testing Program
Draft Audit Report (1999-000310)
Dear Mr. Jannetti:
This is in response to your letter of April 25, 2000 transmitting a draft copy of the audit
report of "EPA's Oversight of State Stack Testing Programs." Given that New Jersey was the
state selected for the audit, I appreciate that you provided us a copy of the draft report and
allowed us the opportunity to comment. Enclosed is a return copy of your draft with a
compilation of my staffs comments in the margins.
Recognizing the complex technical nature of the stack test program, we were pleased to
find that the report correctly characterizes the nature of the program and shows insight into the
importance of maintaining adequate quality control. We are also pleased with the positive
findings concerning the New Jersey stack test program.
While we concur with the conclusion of a need for a defined EPA oversight program on a
national level, we cannot emphasize enough that EPA oversight be achieved through limited and
efficient reporting. New Jersey seeks to maintain a reasonable balance between its efforts in
maintaining an effective testing program and providing assurance to EPA of proper program
function.
NJ relies heavily, as do other states, on the PPA process to articulate DEP and EPA
direction and commitments for the upcoming years. The PPA also establishes the parameters for
the relationship between the two agencies, which includes such things as data exchange.
Therefore, any requirements (data reporting or otherwise) related to stack testing should be
contained within the PPA, rather than within a separate guidance document. Further, no data
reporting requirements for stack testing should be mandated by EPA until EPA and the states
have jointly developed and agreed to such requirements on a national level. In developing such
requirements, EPA should ensure that they are
New Jersey is an Equal Opportunity Employer
Recycled Paper
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not so prescriptive as to effectively eliminate individual states' discretion to direct resources to
priority issues.
We are grateful for the courteous and professional demeanor with which your staff
conducted this audit and trust that a continued focus on our common goal of better environmental
protection will ensue. If you have any questions concerning our comments, please feel free to
contact William O'Sullivan, Administrator, Air Quality Regulation at (609) 984-1484 or Donald
Patterson, Administrator, Air Compliance and Enforcement at (609) 633-7288.
Pico 11/marlen/oigrpt
C: Gary Sondermeyer, Chief of Staff
Dennis Hart, Assistant Commissioner, Environmental Regulation
Cathy Tormey, Assistant Commissioner, Compliance and Enforcement
William O'Sullivan, Administrator, Air Quality
Donald Patterson, Administrator, Air Compliance and Enforcement
John Preczewski, Chief, Bureau of Technical Services
//uydVhJL>%--
Marlen Dooley, Deputy Commissionei
Sincerely,
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APPENDIX 4
DISTRIBUTION
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DISTRIBUTION
Headquarters
Office of Inspector General - Headquarters (2410)
Agency Audit Followup Coordinator (3304)
Agency Audit Followup Official (3101)
Audit Followup Coordinator, Office of Enforcement
and Compliance Assurance (2201A)
Assistant Administrator for Air and Radiation (6101 A)
Associate Administrator for Regional Operations and State/Local Relations (1501)
Associate Administrator for Congressional and Intergovernmental Relations (1301)
Associate Administrator for Communications, Education, and Media
Relations (1701)
Director, Office of Regional Operations (1108)
Headquarters Library (3404)
Regional Offices
Regional Administrators
Regional Air Enforcement Directors
Regional Audit Followup Coordinators
Regional Directors of Public Affairs
Regional Libraries
State Office
New Jersey Department of Environmental Protection
General Accounting Office
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