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OFFICE OP INSPECTOR GENERAL
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Evaluation Report
Immediate Action Needed to Address
Weaknesses in EPA Efforts to Identify
Hazardous Waste Sites in Indian Country
Report No. 2004-P-00003
January 30, 2004
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Report Contributors: Katherine Thompson
Steve Hanna
Carol Kwok
Abbreviations
CERCLIS Comprehensive Environmental Response, Compensation and Liability
Information System
NPL National Priorities List
NTEC National Tribal Environmental Council
TASWER Tribal Association on Solid Waste and Emergency Response
Cover photograph: The Upper Columbia River, a hazardous waste site impacting the
Confederated Tribes of the Colville Reservation (OIG staff photo)
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF
INSPECTOR GENERAL
January 30, 2004
MEMORANDUM
SUBJECT: Immediate Action Needed to Address Weaknesses in EPA Efforts to Identify
Hazardous Waste Sites in Indian Country
Report No. 2004-P-00003
FROM: Carolyn Copper/s/
Director of Program Evaluation: Hazardous Waste Issues
Office of Program Evaluation
TO: Barry Breen
Principal Deputy Assistant Administrator
Office of Solid Waste and Emergency Response
In connection with our ongoing evaluation of the Environmental Protection Agency's (EPA's)
activities to enhance the role of Indian tribes in the Superfund program, we noted immediate
actions were needed to address weaknesses in the Agency's development of an inventory of
hazardous waste sites in Indian Country. This is our final memorandum report on this issue; it
contains the findings that describe the problems the Office of Inspector General (OIG) has
identified and the corrective actions the OIG recommends. This report represents the opinion of
the OIG and the findings contained in this report do not necessarily represent the final EPA
position. Final determinations on matters in this report will be made by EPA managers in
accordance with established audit resolution procedures.
Action Required
In accordance with EPA Manual 2750, you are required to provide a written response to this
report within 90 calendar days of the date of this report. You should include a corrective action
plan for agreed-upon actions, including milestone dates. We have no objections to the further
release of this report to the public. For your convenience, this report will be available at
http://www.epa.gov/oig.
If you or your staff have any questions, please call me at (202) 566-0829 or Katharine
Thompson, Project Manager, at (916) 498-6535.
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Results in Brief
In 1999, the Agency started its development of an inventory of hazardous waste sites on Indian
land. To obtain necessary tribal input on the sites it identified, EPA provided funding under a
cooperative agreement to a recipient, the Tribal Association on Solid Waste and Emergency
Response (TASWER). By law, EPA is required to determine the extent of hazardous waste sites
on Indian lands, in consultation with tribes.
In connection with our ongoing evaluation of EPA's Superfund activities in Indian country, we
evaluated the Agency's inventory development efforts, including the methodology being used to
obtain tribal input. We found serious shortcomings in its efforts:
• The Agency's inventory development efforts had been substantially delayed due to project
mismanagement issues associated with TASWER.
• The Agency had not fully defined the inventory-related information needed to manage its
Superfund activities in Indian country. As such, it risked collecting insufficient or irrelevant
inventory data from tribes.
• TASWER's methodology for obtaining tribal input had serious limitations that may prohibit
the development of an accurate and reliable baseline inventory of sites of tribal concern.
• The Agency had not developed a detailed plan for validating, managing, storing, or updating
the baseline inventory. This process has the potential to be complex and resource intensive
and could cause additional delays in the completion of the inventory.
We believe that these shortcomings in the Agency's inventory development effort, if not
substantially revised, will not likely produce credible results or reliably meet EPA's program
management needs. Moreover, without significant modifications., the Agency will be required to
make an additional investment in this effort. Because TASWER's contractor was just beginning
its tribal input activities in My 2003, we issued a "flash" memorandum in draft to the Agency in
October 2003 advising it of the need to take immediate actions to address weaknesses in the
inventory development effort.
Background
Three factors establish EPA's need and commitment to determine the extent of hazardous waste
sites on Indian lands. First, the 1986 Superfund Amendments and Reauthorization Act required
EPA to conduct a survey "... in consultation with Indian tribes, to determine the extent of
hazardous waste sites on Indian lands." Second, in response to a 1998 national tribal forum,
EPA formally agreed to develop a list of hazardous waste sites that potentially qualified for
action under the Comprehensive Environmental Response, Compensation, and Liability Act
(also known as CERCLA or Superfund) and determine the tribes' priorities for these sites.
Third, in its 2002 draft 'Tribal Program Strategy," EPA stated that it will develop a baseline of
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national Superfund data on the extent of hazardous waste sites in or impacting Indian country to
provide a sound basis for program decisions.
Development of the baseline inventory is a large and difficult effort for several reasons. EPA
must consult with more than 560 Federally-recognized tribes. In addition, obtaining tribal input
can be an arduous task for a number of reasons, one being the difficulty in obtaining responses to
requests for information. Another problem is the lack of tribal staff available to answer
questions. Complex Indian land and treaty rights issues further complicate the development of
an inventory. For example, hazardous waste sites, though not directly on a reservation, may
impact a tribe by diminishing its ability to fish, hunt, or gather in usual and accustomed areas.
Scope and Methodology
Our observations and suggestions are based on interviews and documentation obtained from
knowledgeable Office of Solid Waste and Emergency Response headquarters staff and regional
staff. In addition, we interviewed and obtained documentation from TASWER, headquartered in
Washington, D.C. TASWER is the current EPA recipient conducting and managing activities
designed to produce the inventory of hazardous waste sites on tribal lands. We interviewed the
National Tribal Environmental Council (NTEC), a tribal membership organization. We also
took into account the results of an OIG audit of TASWER's agreement, "Costs Claimed by the
Tribal Association on Solid Waste and Emergency Response Under EPA Assistance Agreement
No. CR827181-01," issued September 19,2003. We are performing our evaluation according to
Government Auditing Standards, issued by the Comptroller General of the United States.
Findings
Agreement Mismanagement Has Delayed Inventory Development
In 1999,13 years after the inventory requirement was mandated by Congress, EPA developed a
list of actual and potential Superfund sites impacting tribal lands using the Comprehensive
Environmental Response, Compensation and Liability Information System (CERCLIS) and other
sources, such as the Department of Defense and NTEC. To obtain necessary tribal input on the
sites mat were identified, EPA provided funding under a cooperative agreement to a recipient,
TASWER. Due to agreement mismanagement, TASWER has not yet produced a tribal-verified
inventory of hazardous waste sites on Indian lands, although records indicate mat TASWER has
been managing the effort for more than three years - since July 2000.
TASWER's management failures involved awarding anoncompetitive contract in October 2000
to the National Energy-Environment Law and Policy Institute of the University of Tulsa College
of Law to complete a tribal census of known and suspected hazardous waste sites on or near
tribal lands. In addition, TASWER paid $500,000 of the $750,000 contract amount to the
University of Tulsa (Tulsa) under this contract in advance of work performed. According to
EPA officials, they had assurances from TASWER that the contract was competitively awarded.
However, EPA later discovered that they had been mislead by TASWER senior management.
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Subsequently, EPA evaluated TASWER's contract management and issued a stop work order on
July 3,2002, nearly two years after the contract was awarded. As of September 2003, TASWER
had not received a final accounting of funds expended or a refund for uncompleted work.
EPA lifted the stop work order on November 26, 2002. At EPA's urging, TASWER cancelled
its contract with Tulsa and, on June 30,2003, TASWER issued a competitively-awarded contract
to Zender Environmental Science and Planning Services. This second award was made over 21A
years after the first contract was awarded to Tulsa.
We observed other weaknesses in TASWER's management of the inventory project and related
project dollars:
• An information collection request required Office of Management and Budget approval
because the inventory project involved conducting a census of all Federally-recognized
tribes.1 However, mis request was not submitted until November 2002,2 years after the
contract to the University of Tulsa was awarded. According to EPA, the information
collection request was delayed because TASWER did not provide EPA with a sufficient
description of the census methodology.
• At EPA's request, the EPA DIG audited TASWER's costs claimed under its cooperative
agreement. The audit found numerous problems with TASWER's financial management,
including the inability to reconcile claimed costs to its general ledger and inappropriate draw
downs of cash.
EPA officials told us that one of the reasons they were not fully aware of project problems was
because EPA has limited control over grant work. They also stated they had been misled by the
previous TASWER executive director. EPA believes that past grant mismanagement problems
will not be repeated because, according to EPA, the primary source of past mismanagement was
the former TASWER director. That director resigned and a new TASWER director was hired in
September 2002.
Program Information Needs Require Definition
EPA had not fully defined the inventory-related information it needs to manage its programs,
activities, or initiatives related to Superfund, or general hazardous waste issues on Indian lands.
For example, EPA had not determined if or how Superfund or hazardous waste sites impacting
tribes would be prioritized, or how progress in assisting tribes with Superfund issues at these
sites would be measured or reported. Without first identifying its program information needs,
the Agency risks collecting insufficient or irrelevant inventory data from tribes.
1 Among other things, the Paperwork Reduction Act of 1995 requires that agencies request approval from
the Office of Management and Budget before requesting the same information from 10 or more persons.
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Multiple Limitations in Census Survey Methodology
We identified several limitations that may prohibit development of an accurate and reliable
baseline inventory of sites of tribal concern. They included:
• Inaccurate, obsolete, and incomplete data sources used for determining sites of tribal
concern;
• Poorly designed tribal outreach plans;
• Lack of consultation with a key tribal stakeholder; and,
• The exclusion of off-reservation sites from the tribal survey that may impact treaty-reserved
resources or reservation environments.
Source Data Obsolete
TASWER's tribal survey is based on a list of actual and potential sites from several sources
including EPA, the Department of Defense, and a Georgia Tech Research Institute project.
However, this list, compiled by Tulsa, is incomplete and inaccurate, in part because it is
obsolete. First, the list of sites EPA provided to TASWER was developed in 1999 and does not
reflect interim changes to CERCLIS. For example, EPA's list does not include the Midnite
Mine, a site of concern to the Spokane Tribe, added to Superfund National Priorities List (NPL)
in May 2000. On the other hand, EPA's list does include the Tulalip Landfill, a site that was
deleted from the NPL in September 2002. Further, EPA's list was generated based on regional
input. We attempted to verify the accuracy of this final list, based on a review of regional
submissions. However, EPA was unable to locate some of the source documents for sites
regions had recommended for listing on the inventory.
Second, the list of sites TASWER is working from does not appear to account for information
produced by a 2002 NTEC study. This study adopted a different definition of sites of concern by
identifying all NPL sites within 50 miles of Indian country (more than 400 NPL sites). We have
not determined the degree to which there is an actual conflict between TASWER's survey
methodology and the NTEC study. However, there is an appearance of conflict that we believe
will impair EPA's ability to gain a consensus among tribes, or their representatives, on the
reliability and validity of information currently being collected.
Outreach Poorly Designed
TASWER's plan for surveying tribes has design flaws that need to be addressed. For example,
while TASWER's contractor is responsible for making three attempts to establish a successful
contact with an impacted tribe, an EPA official said that three attempts would be insufficient.
Further, TASWER's previous work indicated tribes may be hesitant to respond to requests to
verify possible hazardous waste sites due to proprietary information concerns involving secret,
sacred, and otherwise culturally sensitive sites. However, no method has been proposed by the
performing contractor to account for this potential non-response problem.
TASWER's survey methodology does not include providing tribes with a list of hazardous waste
sites to be verified. Rather, according to TASWER's survey methodology, "Tribes will be told
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verbally which sites are included in the database." TASWER's contractor said this method was
being used because of concerns regarding the effort required to send site mapping information to
each tribe. However, unless tribes are provided a list of sites, the potential exists for
miscommunication and misunderstandings over which sites are included.
Further, TASWER has not established a goal for a tribal response rate. Survey response rates are
important quality indicators, since non-respondents generally differ from respondents and a low
response can bias survey results as well as reduce the precision of estimates.
Lack of Consultation With Key Tribal Stakeholder
Tribal consultation is important for ensuring the results of the baseline inventory are useful to
EPA and tribal stakeholders and is a fundamental aspect of the Federal trust responsibility. We
observed that TASWER did not consult with NTEC, a key tribal stakeholder, on the
reasonableness of its most recent (My 2003) tribal survey methodology. This is a potential
problem since TASWER's exclusion of off-reservation sites from its survey is inconsistent with
an NTEC study, also funded by EPA. Because the baseline inventory is key to development of
EPA's strategy to address hazardous waste sites impacting Indian lands, it is critical that tribal
stakeholder views are included in the methodology development process. Consultation with key
tribal stakeholders may also help identify and correct weaknesses in the tribal outreach plan,
such as methods to deal with non-response issues.
Exclusion of Off-Reservation Sites From the Tribal Survey
The current survey methodology does not account for sites located outside Indian country.
EPA's draft Tribal Program Strategy calls for the identification of sites "in or impacting" Indian
country. Hazardous waste sites not directly on a reservation may impact a tribe by diminishing
its ability to fish, hunt, or gather. In a number of Indian treaties, tribes explicitly reserved rights
pertaining to the environment, including rights to fish, hunt, and gather in ceded areas (outside of
reservations) that were their "usual and accustomed" hunting and fishing areas. A Federal court
decision established the general rule that the Federal government cannot abridge natural resource
rights ceded to Indian tribes under treaties. This rule prohibits acts that would diminish the
ability of a tribe to exercise its treaty rights, and notes "existence of an environmentally-
acceptable habitat is essential to the survival of the fish, without which the expressly-reserved
right to take fish would be meaningless and valueless."
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Figure I-Sign (left) -warns public to avoid consumption of shellfish
from waters off the Wyckoff-Eagle Harbor site. (EPA OIG photo)
Experiences of the Suquatnish
Tribe, located on Bainbridge
Island, Washington, provide an
example of how contamination at
an off-reservation site can impact a
tribe. The tribe's treaty-reserved
resources included its adjudicated
usual and accustomed fishing
area-about 3,500 square miles in
the Puget Sound area. As a result,
the tribe has a vested interest in 11
Superfund sites, including the
Wyckoff-Eagle Harbor site,
because the tribe's fishing rights
have been adversely impacted by
contamination from the sites
(figure 1). According to
TASWER's current survey
methodology, sites not in Indian country, such as the Wyckoff-Eagle Harbor site, would be
excluded from the survey.
Agency Lacks Plans for Managing Tribal Site Inventory Data
EPA staff stated they had not developed a detailed plan for validating, managing, storing, or
updating the baseline inventory. In particular, the validation process has the potential to be very
complex and resource intensive, and if done thoroughly, will likely cause additional delays in the
final completion of an inventory. If the remaining tasks are significantly delayed, they may
render parts of the original data irrelevant to EPA's needs and purposes.
We observed the following tasks that EPA will need to account for in the management and
verification of the inventory data, when complete.
• Validation of the inventory bv tribes. EPA regions, and Headquarters. EPA stated that, when
the inventory is complete, it plans to evaluate sites to determine which sites are of concern to
both EPA and tribes and which Federal program (e.g., Superfund, Brownfields, Resource
Conservation and Recovery Act), if any, could address the site. This is necessary because in
developing its list of actual and potential sites, EPA had cast "the widest net possible" and
identified any site mat may contain hazardous waste (such as open dumps) or may be of
interest to tribes. EPA believes that, in the end, it is likely that many of these sites will be
ineligible for Superfund or will not be of concern to tribes. Although EPA recognizes that
there will be a considerable data verification effort needed to determine the best program for
a site, or its eligibility, EPA told us it only has "a skeleton of a process" for how to conduct
these planned activities. EPA will also need to determine how the inventory will be updated.
Maintenance of a dynamic inventory requires the definition of a process for the review and
updating of the data.
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Storage of the initial data in a database. EPA has not determined how or where the
information will be stored, including which data elements will be included or required. EPA
staff indicated that the results produced by TASWER would be sent to EPA in an industry-
standard database format. The information provided is likely to contain data that cannot be
readily stored in CERCLIS. However, no provisions have been made to establish an EPA
database to store the data before selected data elements are transferred to CERCLIS.
Transfer of selected data into CERCLIS. EPA has not defined a mechanism for transferring
the baseline inventory data to CERCLIS, the Agency's primary national information system
for Superfund sites' location, status, contaminants, and actions taken. EPA staff told us that
they anticipated that CERCLIS would be the data repository for the tribal site inventory.
Accordingly, a mechanism must be identified for the transfer of data into CERCLIS. This
data transfer could be either automated or manual but, in either case, requires the allocation
of resources to transfer the data and to ensure that data quality criteria have been met.
Storage of inventory data in CERCLIS using defined tribal data elements or attributes. EPA
has not determined which CERCLIS data elements would be used to track the baseline
inventory. CERCLIS contains at least nine tribal identifiers, and the functions and
relationships to each other are not readily apparent. These identifiers range from explicit
(an ownership code that indicates Indian land) to arcane (presence of a tribal cooperative
agreement, as indicated by the fourth digit of the account code).
Definition of inventory format. EPA has not defined the tribal site inventory reporting
format or data access requirements. EPA needs to consider internal and external
informational needs, such as the distribution of reports to tribes, online access, and public
access through the Envirofacts, CERCLIS, and EPA's Tribal Information Management
System. Since CERCLIS was the planned data repository for tribal site information, periodic
data extraction will be required. To our knowledge, the mechanism for this extraction and
the format of the inventory has not been defined. Further, we are not aware of any
consultation efforts with tribal stakeholders to identify their periodic information needs.
These must logically be defined prior to 1he definition of CERCLIS tribal data elements to
ensure that CERCLIS can generate the required reports and provide needed online data
access.
Conclusions
An inventory of hazardous waste sites in Indian country performed in consultation with tribes is
required by law. EPA has made a commitment, and taken steps to develop an inventory through
its own efforts and by involving tribal groups, through TASWER However, the combination of
TASWER's past mismanagement practices and the current, questionable inventory methodology
make it highly unlikely that EPA's current efforts to develop an inventory of hazardous waste
sites in Indian country will produce results that will reliably meet EPA's program management
needs. Further, EPA's need to develop data management and verification plans - which can be
extensive, detailed, and require resources and time - indicates there will be potential, significant
delays in obtaining a final inventory. Because the current inventory methodology is already
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based on the use of obsolete and unverified information, continued delays in the completion of
the inventory will exacerbate the existing inaccuracies in the inventory data. We believe the
current efforts are misdirected and, without modification, will not produce credible or effective
results.
Recommendations
We recommend that EPA's Office of Solid Waste and Emergency Response:
1. Provide periodic, planned, and focused oversight to TASWER's cooperative agreement
2. Define specific program information needs for managing and developing effective programs,
policies, or guidance concerning hazardous waste in Indian country, and ensure the inventory
methodology can support these informational needs.
3. Review the inventory methodology and address key limitations. At a minimum, ensure the
inventory methodology:
a. Includes tribal consultation and is agreed to by tribal stakeholders, including NTEC;
b. Defines an acceptable, justified, tribal response rate and includes a clear management
plan to achieve this response rate;
c. Accounts for non-response problems associated with proprietary information
concerns of tribes;
d. Includes providing tribes with written lists of sites they are being asked to verify;
e. Is based on complete, accurate, and up-to-date information, including current
CERCLIS site information and the NTEC 2003 study of sites; and
f. Accounts for current limitations in excluding off-reservation sites that may impact
treaty-reserved natural resources or reservation environments.
•
4. Develop a detailed plan for validating, managing, storing, and updating the baseline
inventory. Ensure the plan is clearly articulated and includes milestones and resource
estimates. Specific steps to be addressed sequentially include defining the:
a. Process for review of the inventory by tribes, EPA regions, and headquarters;
b. Format and content of the inventory mat meets EPA and tribal needs;
c. Required CERCLIS modifications;
d. Mechanism for import of inventory data into CERCLIS; and
e. An Agency storage medium for the initial inventory data.
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Agency Comments and OIG Evaluation
The Agency responded that, on balance, it believes the OIG recommendations are appropriate to
consider and may help ensure that the inventory project is successful for both tribes and EPA.
(The Agency's complete response can be found in Appendix A.) The Agency stated it had
addressed the substantive limitations in the planned methodology for tribal input for the
hazardous waste site inventory in Indian country. It agreed to continue "close oversight" over
TASWER's cooperative agreement. However, it was "deeply concerned" about three broad
issues arising from the report.
First, the Agency believed that our report did not take into account major changes and
improvements made by TASWER over the past year, in the aftermath of EPA issuing a stop
work order to TASWER. EPA stated that the stop work order was lifted after EPA was satisfied
that deficiencies were addressed. The OIG did note major changes made by TASWER, such as
the change in executive directors, the hiring of a new contractor, and use of competitive
procurement. However, considering the magnitude of past mismanagement issues and the
importance of TASWER's effort to the Agency's baseline tribal inventory, we believe continued
close oversight is imperative.
Second, the Agency did not agree that our draft report recommendation to impose another stop
work order on TASWER was viable. We agree that, based on the Agency's response, a stop
work order is not warranted at the current time. The Agency has indicated that TASWER (1) has
corrected its regulatory violations, (2) can meet its programmatic and fiscal commitments, (3)
has been responsive to the Agency's suggestions and needs for the project, and (4) understands
that the substance of its work must meet the Agency's technical standards. The applicable
recommendation has been modified accordingly.
Third, the Agency believed that there was an implied assumption in the report that EPA must
manage this effort as if TASWER (and its contractor) is an EPA contractor, rather than a grantee.
The Agencypointed out that it made a "conscious policy choice" to support the work of an
organization representing the interests of tribal co-regulators under a cooperative agreement,
rather than acquire services under a contract. The Agency also advised that the principal
purpose of TASWER's project is to further TASWER's efforts on behalf of tribes, rather than
meet the Agency's program management needs. The Agency said that under EPA Order 5700.1,
a cooperative agreement is not an appropriate mechanism to collect Agency data.
We are pleased that the Agency recognizes the limitations in its ability to obtain an Agency
inventory, to meet Agency needs, through the use of a cooperative agreement. In the absence of
any other OSWER-sponsored efforts to create an inventory, there is an appearance that the
Agency is relying on TASWER's project to create its inventory. Nonetheless, the Agency stated
that it intends to invoke its right, under 40 CFR 30.36, to use the data that TASWER generates
under the cooperative agreement for Federal purposes. Further, according to the Federal Grant
and Cooperative Agreement Act, cooperative agreements are used when substantial agency
involvement is anticipated. Given these factors, the delays, mismanagement, and serious
technical weaknesses we identified, we continue to believe that the Agency must exercise any
authority and oversight it can over TASWER's project. In addition, as we discussed with
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Agency staff on January 15,2004, our recommendations for improvements in the inventory
methodology and data management plans were directed at the Agency's needs, not TASWER's.
Therefore, we have restated ihe Agency's requirement to respond to our recommendations as
described below.
Recommendation 1: The Agency agreed to continue close oversight of TASWER and stated it
was maintaining substantial involvement through frequent meetings with TASWER, and shared
information. In light of the Agency's response to our draft memorandum, we have modified our
recommendation to stress the importance of periodic, planned, and focused Agency oversight of
TASWER's cooperative agreement. We ask that the Agency address this specific
recommendation in its response to the final report, along with projected milestones for
completion.
Recommendation 2: The Agency responded that it will continue to work on an appropriate
basis with TASWER to communicate information needs that may optimize benefits to tribes.
However, it noted that TASWER's cooperative agreement was not intended to satisfy Agency
information needs. The Agency agreed that it needs to plan how it will conduct its next steps in
light of TASWER's findings and resulting tribal expectations. The Office of Solid Waste and
Emergency Response agreed to coordinate with the Agency's American Indian Environmental
Office in designing data input and future reporting needs in the Tribal Information Management
System and CERCLIS.
This recommendation addresses the Agency's responsibility and process to identify its baseline
inventory information requirements, such as site location, impacted tribe, nature of
contamination, status of 1he cleanup, among others. These information requirements should
consider not only the needs of CERCLIS and the Tribal Information Management System, but
other inventory-related information required for fully developing a plan for managing Superfund
program responsibilities in Indian country. According to Agency staff, these information
requirements have been largely identified. In response to the final report, the Agency needs to
provide additional details on the requirements that have been identified. If they have not been
fully developed, indicate milestones for completion.
Recommendation 3: The Agency stated that it had raised the methodology issues with
TASWER and they had been satisfactorily resolved. Concurrent with the development of the
OIG draft report, TASWER's contractor completed a substantial degree of outreach and research
and revised its methodology. Specifically, TASWER (or its contractor) has:
* Identified actions in its.workplan to update deficiencies in the data,
• Devised strategies to increase its tribal survey response rate to between 40 and 50 percent.
• Conducted outreach with many stakeholders for this project, including the National Tribal
Environmental Council.
• Advised EPA it will include off-reservation sites of concern identified by Indian tribes
through the survey in its project.
*
The Agency noted that it was maintaining substantial involvement in the project to help
TASWER shape a data collection effort that will effectively meet tribal needs. It said it will
provide technical assistance to TASWER to help it develop a clear management plan and ensure
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the plan includes tribal non-response issues. We request milestones for completion of the
management plan and, as noted previously, EPA's plans for maintaining periodic and focused
oversight. We also request that this oversight include a demonstration by TASWER that the
proposed 40 to 50 percent response rate will capture a valid representative sample.
Recommendation 4: The Agency acknowledged that TASWER's project is subject to the
Agency's quality assurance practices and said it agreed with the overall OIG recommendation
for data management planning. It recognized that the information would be useful for shaping a
detailed data management plan to meet the research needs of tribes and TASWER's co-
regulatory responsibilities. The Agency indicated that many of the findings raised by the OIG
are under active consideration by both the Agency and TASWER's contractor. Specifically, the
Office of Solid Waste and Emergency Response, in collaboration with TASWER and the
American Indian Environmental Office, stated it would address:
• Development of data quality objectives for accepting TASWER's data, noting the approach
for quality assuring the inventory data;
• Development of a data entry control plan outlining the requirements and methods necessary
to enter the inventory data into CERCLIS;
• Update of the Superfund Program Implementation Manual to revise and create new tribal
data definitions as necessary;
• Creation of a CERCLIS/WasteLAN User Request entry to generate and update tribal data
elements in CERCLIS;
• Development of a CERCLIS/WasteLAN requirements analysis supporting the creation and
update of tribal data elements in CERCLIS;
• Transfer of tribal inventory data to CERCLIS via a CERCLIS/WasteLAN revision;
• Development of a CERCLIS/WasteLAN Tribal Data Quick Reference Guide presenting key
tribal data fields and the process for updating those fields within WasteLAN;
• Development of tribal reports within EPA's CERCLIS/WasteLAN and Superfund eFacts
applications for internal Agency use; and
• Inclusion of tribal data in the Agency's public Superfund web site.
This recommendation addresses the Agency's need to develop a specific plan for validating and
managing its tribal inventory. Because the Agency's position is that TASWER's project is not
designed to meet the Agency's needs, the Agency is required to respond to this recommendation.
The outline the Agency describes above has important elements; however, our recommendation
calls for a more detailed, sequenced plan that includes specific activities needed, such as those
necessary for the validation process. The plan should also include a process for considering
internal and external informational needs based on consultation with stakeholders, such as
regions and tribes. In response to our final report, the Agency needs to include this detailed,
sequenced plan along with milestones for completing activities.
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Appendix A
Agency Response
December 16, 2003
MEMORANDUM
SUBJECT: Response to OIG Assignment No. 2002-001135, Immediate Action Needed to
Address Weaknesses in EPA Efforts to Identify Hazardous Waste Sites in Indian
Country
FROM: Barry Breen
Principal Deputy Assistant Administrator ^
Office of Solid Waste and Emergency Response
TO: Carolyn Copper
Director of Program Evaluation: Hazardous Waste Issues
Office of Program Evaluation
Thank you for the opportunity to provide comments on the daft evaluation report on
"Immediate Action Needed to Address Weaknesses in EPA Efforts to Identify Hazardous Waste
Sites in Indian Country," Assignment No. 2002-001135. This evaluation raised some very
important issues and we appreciate the opportunity to respond to your findings. Due to the
significant coordination on this response document, not all of the referenced attachments were
reviewed by the appropriate offices. Therefore, OSWER will send the attachments under
separate cover by mid week.
The Office of Solid Waste and Emergency Response (OSWER), including the Office of
Site Remediation and Technology Innovation (OSRTI), and the Office of Solid Waste (OSW)
has worked with the Office of General Counsel (OGC), the Office of Grants and Debarment
(OGD), the American Indian Environmental Office (AIEO), and the Tribal Association on Solid
Waste and Emergency Response (TASWER), a grantee to OSWER, to provide comments on the
OIG's findings and recommendations. On balance, EPA believes that the recommendations
outlined in the report are appropriate to consider and may help ensure that this project is
successful to both tribes and EPA. However, we are deeply concerned about three broad issues
arising from the report. First, the report fails to take into account major changes and
improvements by TASWER over the past year, in the aftermath of EPA issuing a stop work
order. The stop work order was lifted only after EPA was satisfied that deficiencies were
addressed and that TASWER was prepared to meet its fiscal and programmatic commitments.
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Second, your recommendation that EPA impose another stop work order on TASWER is not
viable. There does not appear to be a basis to institute a second stop work order to TASWER
' under the applicable regulations. Such an action creates upheaval and disruption that would
have a negative affect on those who are now working effectively to make TASWER a
responsible and productive grantee. The third area of concern is 1he implied assumption in the
report's findings and recommendations that EPA must manage this effort as if TASWER and its
contractor are EPA contractors. EPA must manage TASWER's effort consistent with its legal
relationships under a cooperative agreement.
It is important for the OIG to recognize that EPA made a conscious policy choice to
support the work of an organization representing the interests of tribal co-regulators under a
cooperative agreement, rather than acquire services under a contract. We chose the cooperative
agreement mechanism for several reasons, with the primary aim to build tribal capacity to
identify hazardous waste sites in Indian country. Our decision to invest in TASWER was based
on direct comment from tribes that a tribally-implemented effort would be preferable (See
Attachment A), EPA hopes to realize improved response by tribes to our initial list of identified
sites and long-term credibility, by having a tribal organization directly work with tribes to collect
data, rather than an EPA contractor. Although we view OIG's recommendations as constructive
on balance, we are concerned that your report neither recognizes the nature of EPA's legal
relationship with TASWER under a cooperative agreement nor the long-term value to the
Agency of the cooperative agreement approach in fostering effective sovereign-to-sovereign
relations. The presumption in your report that TASWER and its contractor Zender
Environmental Planning and Associates (Zender) are performing work for EPA and that the
project is intended to meet EPA's program management needs is not accurate. The principal
purpose of this project is to further TASWER's efforts on behalf of the tribes.
Because the project is being conducted through a cooperative agreement, there are key
differences in EPA's role in the performance of the project from that of our role in a contract.
EPA has "substantial involvement" in the research and grant management oversight. However,
TASWER, not EPA, is the responsible authority for the performance of its contractor, (40 CFR
30.41). Ultimately, TASWER is responsible for the project and has been responsive to our
suggestions and needs for the proj ect, which is intended to benefit tribes. Zender recognizes
that the substance of its work must meet the Agency's technical standards. The contractor states,
"Agency acceptance...is crucial for Tribes. Without engaging in a strict methodology protocol
for the TASWER Project, sites that the Tribes identify will not be recognized by the federal
government as valid sites and thus will not be eligible for the wide array of funding that is
available for recognized hazardous waste sites." The contractor also states, "If the TASWER
project work is carried out in such a way that the... methodology standards are not met, this
work will be futile in short order." (See Attachment B, page 7) Nonetheless, the contractor is
tasked with meeting the needs of the TASWER and the tribes rather than EPA's. The Agency
cannot legally provide day-to-day direction to TASWER's contractor as if it were an EPA
contractor.
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RESPONSE TO OIG FINDINGS AND RECOMMENDATIONS
\
OIG Finding; Grant Mismanagement has Delayed Inventory Development
OIG Recommendation; Issue a stop work order to TASWER related to its work, to create
an inventory of hazardous waste sites on Indian lands.
. It is a serious matter for EPA to issue a stop work order to a cooperative agreement
recipient. To do so in this case, the Agency must find that TASWER has materially failed to
comply with the terms and conditions of the cooperative agreement or an applicable statute or
regulation, (40 CFR 30.62(a)(l) and (2)). As indicated below, the Agency did issue a stop work
order to TASWER in July 2002 on the basis of specified material violations of 40 CFR Part 30
relating to financial management systems and competitive procurement. These violations were
subsequently corrected. Your report does not identify any specific terms and conditions,
regulations or statutes with which TASWER is currently in material non-compliance, and the
Agency cannot issue a stop work order to TASWER solely on the grounds that the OIG believes
that TASWER's contractor should be using a different inventory methodology.
EPA continues close oversight of the cooperative agreement in the aftermath of lifting the
stop work order. TASWER is fully cooperating with EPA in carrying out its approved workplan,
including the Hazardous Waste Sites on Indian Lands project. OSWER maintains substantial
involvement through frequent meetings with TASWER, and shared information.
Action on #1 Recommendation:
None planned.
OIG Finding; Program Information Needs Require Definition.
OIG Recommendation; Define specific program information needs for managing and
developing effective programs, policies, or guidance concerning hazardous waste in Indian
country, and ensure the inventory methodology can support these informational needs.
The OIG finding is that EPA's program information needs will not be met through this
project because EPA has not defined its needs for developing an effective Superfund program,
policies and guidance, and resolving general hazardous waste issues. EPA has three concerns in
response to this finding. First, the data collection effort by TASWER is not intended to provide
a comprehensive answer to the Superfund program's information needs. TASWER is
conducting the Project research for the benefit of Tribes - to build long-term tribal capacity to
identify and seek solutions for hazardous waste sites impacting Indian country. Obtaining data is
incidental to the principal purpose of this agreement, which is to build the research capacity of a
tribal "co-regulator" organization as described at EPA Order 5700.1; Policy for Distinguishing
Between Acquisition and Assistance (March 22,1994), pages 8 and 9.
As a representative of tribal co-regulators, TASWER recognizes that for the data to be
useful to the tribes, it must also be useful to EPA. EPA has the right under 40 CFR 30.36 to use
the data TASWER generates under the cooperative agreement for Federal purposes and the
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Agency intends to invoke that right. As co-regulators, Tribes and EPA must ultimately have
similar understanding of the data to be able to work together and make good decisions on what
the next steps should be to address the identified sites. TASWER has structured its data
methodology around the recognition of these basic data needs.
The third concern is the OIG finding that the data collection effort should satisfy information
needs for Superfund program management, policies, guidance and general hazardous waste
issues on Indian lands. OGC has advised OSWER mat a cooperative agreement would not be
the appropriate mechanism to collect such data as it would be inconsistent with EPA Order
5700.1, EPA's interpretation of the Federal Grant and Cooperative Agreement Act. The Order
provides, on pages 9 and 10, that EPA must use a contract to obtain specific information for the
Agency's own use to evaluate Agency efforts and programs to improve internal operations, to
obtain specific information for technical and policy decisions for help in preparing EPA
guidance documents and policy analyses. This position is inconsistent with other OIG audits
criticizing the Agency for failing to comply with the Federal Grant and Cooperative Agreement
Act. See for example, Matter of Environmental Protection Agency-Inspector General-
Cooperative Agreement-Procurement, B-262110, March 17,1997.
Zender understands the distinct dynamic between tribally-researched data versus EPA
program management activities. Zender states in its most recent report, "... The number of and
location of such sites is information that USEPA, the ultimate funder of the Project, will need
when it deals with Tribes on the issues of hazardous waste. That is, regardless of whether it is
or is not a "hazardous waste site" (i.e., Subtitle C handler, storage, disposal, etc.), the Tribe will
consider it as such and will expect to be assisted to deal with it as such. It is then EPA's choice
to expend resources educating Tribes on what constitutes a hazardous waste site, or how they
deal/manage with such a waste site (including referral of Tribes to correct federal government
department based on site characteristics (e.g., DOD, DOE purview sites)" (See Attachment B,
page 2).
OSRTI is undertaking a separate effort to develop tribal-specific, internal reporting measures
on OSWER program performance. The draft measures being evaluated by OSRTI stem directly
from tribal recommendations to EPA through the NACEPT Superfund subcommittee and the
Superfund Tribal Working Group (See Attachment C). EPA is analyzing the information needs
for these potential draft measures and believes it would most appropriately be satisfied through
government-to-government discussions between EPA Headquarters, Regional offices and
individual tribes as part of an annual planning process.
Action on #2 Recommendation:
OSWER will continue to work on an appropriate basis with TASWER to communicate
mutual information needs that may optimize benefits to tribes.
Despite our stated concerns, this recommendation does highlight the need for EPA to
think ahead as to how it will conduct the next steps in light of TASWER's findings and resulting
tribal expectations. OSWER will coordinate with AIEO in designing our data input and future
reporting needs in both TIMS and CERCLIS.
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QIC Finding; Multiple Limitations in Census Survey Methodology
QIC Recommendation: Review the inventory methodology and address key limitations in
the methodology before lifting any stop work order. At a minimum, ensure the inventory
methodology:
a. Includes tribal consultation and is agreed to by tribal stakeholders, including NTEC;
b. Defines an acceptable, justified, tribal response rate and includes a clear management
plan to achieve this response rate;
c. Accounts for non-response problems associated with proprietary information
concerns of tribes;
d. Includes providing tribes with written lists of sites they are being asked to verify;
e. Is based on complete, accurate, and up-to-date information, including current
CERCLIS site information and the NTEC 2003 study of sites; and
f. Accounts for current limitations in excluding off-reservation sites that may impact
treaty-reserved natural resources or reservation environments.
The OIG's findings go into great detail regarding TASWER's methodology for the
tribal project. Provided its actions are consistent with the scope of work and terms and
conditions of the grant, TASWER is the ultimate decision-maker for the methodology of this
project EPA is maintaining substantial involvement in the project to help TASWER shape a
data collection effort that will effectively meet tribal needs. The resulting data from this project
ties together tribal expectations with federal responsibilities for hazardous waste sites.
Successful outcome will depend upon appropriate partnership between EPA and the Tribes.
EPA's primary technical concern regarding the OIG findings on methodology is
that the draft report does not recognize recent changes to the originally proposed methodology.
OIG's findings appear to be mostly based on a Zender document entitled, Description of Survey
Methodology-TASWER Hazardous Waste Site Project. TASWER's contractor provided this
document directly to the OIG without prior review by xASWER or EPA. It was written only six
days after the contractor formally began work on the project and before Zender conducted
additional dialogue with project stakeholders. TASWER's contractor has subsequently
completed a substantial degree of outreach and research for this project over the last three
months, concurrent with the OIG development of the draft Evaluation Report. (See Attachment
B, pages 13-16) The OIG used the Zender document to identify certain methodological
assumptions by the new contractor that conflicted with the understood approach of the old
contractor. EPA subsequently raised the issue with TASWER and received responses from
TASWER. TASWER is involving EPA in ongoing discussions as they make decisions on a final
methodology with Zender. The following information from TASWER regarding the Zender
project demonstrates that the contractor has revised their methodology to make it more
consistent with EPA's understanding of the TASWER workplan.
Source Data Obsolete
EPA recognizes that the initial data OSWER collected to support TASWER's efforts on
this project is now several years old. We agree that the data needs to be updated to reflect the
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most recent changes to CERCLIS. However, given the relatively small number of sites added to
or deleted from CERCLIS each year, we do not believe that the bulk of the data is severely
incomplete or inaccurate. The TASWER Project has already identified actions in its proposed
workplan that will update deficiencies in the data The contractor will: (1) call Regional
CERCLA offices for verification of CERCLA sites in Indian country provided by EPA; and (2)
discuss with Tribes sites of concern through the survey. In response to this finding, EPA will
conduct another data pull to assist TASWER in updating the original CERCLIS data provided by
EPA. This may reduce or eliminate the need for the contractor to call Regional Offices to verify
sites.
The OIG is correct that the list of sites for the TASWER project does not contain
information produced in a 2002 National Tribal Environmental Council (NTEC) study.
TASWER's list contains an older NTEC study, which has not been updated with the 2002 study
information. The complete list of data sources compiled by the old contractor, Tulsa University,
is found in Volume 2 of their final report to TASWER. (See Attachment D) To date, the OIG
has only received Volume 1.
TASWER is under no obligation to use the same methodology used by NTEC to conduct
the 2002 study, which uses a 50-mile radius from reservation boundaries to identify sites
potentially impacting Indian country. TASWER has advised EPA mat the TASWER-sponsored
census research will include off-reservation sites of concern. However, TASWER may perceive
a 50-mile radius as too extensive for purposes of establishing a refined baseline for their
purposes. Sites of concern recommended by tribal representatives will be included in the
TASWER survey regardless of proximity to reservation boundary, but TASWER disagrees with
the logic of automatically including ALL sites within a 50-mile radius. When EPA originally
generated CERCLIS data for this project, the Superfund program did not specify a pre-
determined radius for identifying CERCLIS sites. However, based on recommendations from
the EPA RCRA program, TASWER will use a 5-mile radius for generating an initial list of
potential RCRA sites.
Outreach Poorly Designed
The OIG points out vulnerabilities in Zender's original proposed methodology.
Subsequent discussions with EPA and tribal stakeholders have resulted in the following response
from TASWER:
'TASWER is fully aware of concerns associated with potential low response rates from
tribes contacted in the census research. Several meetings have taken place between
TASWER, TASWER's new contractor, and EPA to address these concerns. However,
given the finite time available for the research, some limitations are necessary. Every
effort will be made to contact tribes and increase response rates. Surveys to tribes that
rely exclusively on mailed questionnaires seldom exceed 20% response rates.
Strategies for improving response rate include:
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• Ensuring the right person is contacted: every effort will be made to address surveys to
specific tribal employees and not to the tribal government head (President, Governor,
Chairman, etc.) — names should appear on the envelope and on survey cover letter.
• Initiate prior contact with survey respondents to alert them the survey is coming and
to explain how the survey will help them address their concerns with contaminated
sites.
• Provision of return envelope with postage.
• Clear indication of when survey response is needed (i. e., a response deadline).
• Use of follow-up letters, phone calls, and when available, e-mail, to remind survey
respondents.
Follow-up telephone calls are designed to increase response rate to between 40 - 50
percent, which will be considered an enormously successful survey. While TASWER
may not achieve this response rate, establishing the target is viewed as a critical step in
the survey's success. In addition to the follow-up telephone calls, the outreach plans are
a critical strategy for obtaining feedback from tribal representatives. Outreach activities
will typically involve face-to-face discussions between TASWER's contractor and tribal
representatives at national and regional conferences and meetings. TASWER's contractor
will have surveys and lists of potential sites of concern in both paper and electronic
formats at these outreach events for tribal representatives to review and comment on.
There is no expectation that TASWER's contractor will be in a position to compel a tribe
to respond to the survey when they feel it is not in their interest to do so.
Tribes will be provided with the preliminary list of sites potentially affecting them.
TASWER's contractor will include paper copies of the site lists with the survey when it
is mailed to each tribe. In addition, any new sites identified by EPA's American Indian
Environmental Office "Tribal Information Management System" (TIMS) effort will be
included in TASWER's final report. Ongoing meetings between TASWER and EPA's
TIMS project manager are ensuring close coordination between the two data validation
efforts. In fact, the TIMS effort will rely extensively on TASWER's census survey as
part of that projects outreach to tribes (See Attachment E). AIEO will be sending out a
letter to tribes that includes specific reference to the TASWER-sponsored data
verification effort. Having this prior notification mailed to tribes from a credible EPA
official will help improve response rates for the TASWER survey. More man 90% of
sites in the preliminary TASWER list are included in TIMS and are available to tribes for
review and comment in a secure, tribe specific password protected, on-line data base.
The inclusion of tribe-specific lists of potential sites of concern in the TASWER mail
survey and the close collaboration between TASWER and EPA are designed to address
concerns about lack of access to lists of sites for tribes to review and will reduce
misunderstandings over which sites are included in the survey.
Tribal outreach plans were revised by TASWER's former contractor and further refined
by the new TASWER contractor (See Attachment F). Outreach activities are currently
underway. For example, TASWER's contractor had a promotional outreach booth at the
Annual NTEC Conference (Gila River Indian Community, Gila River, AZ - May 2003).
TASWER's contractor also held a workshop at the EPA Region 9 Tribal Environmental
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Summit (held at the Pachanga Tribe Indian Reservation, CA - October 2003). The purpose
of this workshop was to explain the TAS WER research effort and to obtain input from tribes,
In addition, TASWER's contractor attended the 4th Annual TASWER Training Conference
(Reno, NV - November 2003). TASWER's contractor met with more than 50 tribal
government representatives at this conference about the census research effort TASWER's
contractor will continue to conduct outreach to tribes throughout the proj ect and improve the
census as a result of input obtained. Consultation with other tribal organizations is also part
of the outreach activities currently underway."
Lack of Consultation with a Key Tribal Stakeholder
OSWER encourages cooperation among tribal co-regulators. At OSWER's request,
TASWER has responded to this OIG finding, stating "TASWER acknowledges the importance
of working closely with NTEC and using information developed by NTEC that can benefit
TASWER's census research. This is demonstrated in the 3-Volume final report submitted by
TASWER's former contractor. The report documents the importance of including NTEC data in
TASWER's census research, and continued consultation with NTEC. This ongoing TASWER-
NTEC relationship is demonstrated by the face-to-face meeting held in Washington, DC between
TASWER Executive Director, staff, and NTEC Executive Director on September 17,2003. (See
Attachment G) The NTEC Executive Director expressed the importance of having TASWER as
a participant in NTEC's Superfund Tribal Working Group. Consultation with NTEC will
continue throughout TASWER's census research. It is not always possible to reach consensus
among stakeholders, and consultation with stakeholders does not necessarily mean agreement or
consensus. TASWER will analyze NTEC's most recent study and include appropriate,
referenced data into the project."
TASWER and TASWER's contractor have conducted outreach with many stakeholders
for this project, in addition to individual tribal representatives, and NTEC. Consulted
stakeholders include: Inter-Tribal Environmental Council (Talequa, OK), Institute for Tribal
Environmental Professionals (Phoenix, AZ), Alaska Forum, Inc. (Anchorage, AK), and others.
Exclusion of Off-Reservation Sites From the Tribal Survey
As previously stated, TASWER has advised EPA that the TASWER project will include
off-reservation sites of concern identified by Indian Tribes through the survey.
Actions on #3 Recommendations:
(a) EPA will closely monitor the cooperative agreement to ensure that TASWER will
continue to conduct tribal consultation in the manner laid out in the description
above.
(b) EPA will provide technical assistance to TASWER to help it develop a clear
management plan consisting of the items in the above description.
(c) EPA will collaborate with TASWER to help ensure that its management plan will
include non-response issues associated with proprietary information of concern to
tribes.
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(d) EPA will closely monitor the cooperative agreement to ensure that TASWER will
provide tribes with written lists of sites they are being asked to verify.
(e) Regional CERCLA offices will collaborate with TASWER to update the data for
verification of CERCLA sites in Indian country provided by EPA (if necessary); and
(2) EPA will closely monitor the cooperative agreement to ensure mat TASWER will
discuss with Tribes sites of concern through the survey.
(f) EPA will closely monitor the cooperative agreement to ensure that TASWER will
include off-reservation sites that are of concern to a tribe, including the concern that
the site impacts the reservation community or treaty-reserved natural resources. EPA
will share data and provide technical assistance to TASWER to enable it to utilize a
5-mile radius for generating an initial list of potential RCRA facilities impacting
Indian lands.
QIC Finding: Agency Lacks Plans for Managing Tribal Site Inventory Data
QIC Recommendation; Develop a detailed plan for validating, managing, storing, and updating
the baseline inventory. Ensure the plan is clearly articulated and includes milestones and
resource estimates. Specific steps to be addressed sequentially include defining the:
a. Process for review of the inventory by tribes, EPA regions, and headquarters;
b. Format and content of the inventory that meets EPA and tribal needs;
c. Required CERCLIS modifications;
d. Mechanism for import of inventory data into CERCLIS; and
e. An Agency storage medium for the initial inventory data.
EPA acknowledges mat if a grantee's project involves environmentally related data
generation, the grantee must develop and implement quality assurance practices consisting of
policies, procedures, specifications, standards and documentation sufficient to produce data of
quality adequate to meet the project's objectives and to minimize loss of data due to out-of-
control conditions or malfunctions (40 CFR 30.54). In addition, the provision in 40 CFR 30.54
contains reference to EPA Order 5360.1 A2, Policy and Program Requirements for the
Mandatory Agency-Wide Quality System, which requires non-profit recipients of financial
assistance (e.g., Grants and Cooperative Agreements) under the authority of 40 CFR 30, (among
other entities), to develop and implement quality assurance practices. Clearly, TASWER is
subject to these requirements through the Project's proposed data collection. EPA Order 5360.1
A2 also applies to EPA organizations, including the situation in which EPA will use
environmental data collected for other purposes for other sources (also termed "secondary
data").
As noted above, OSWER has unrestricted access to data produced under an assistance
agreement (40 CFR 30.36). While TASWER will be the primary source of this data for the
tribes, OSWER intends to reproduce, or otherwise use, selected data elements from the
TASWER database into our data systems, which are in the public domain, to ensure that the data
is fully utilized by, and made available to all tribes. EPA believes that tribes can most optimally
benefit from the TASWER data if relevant data elements from TASWER can be viewed in other
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contexts, such as the publicly-accessible EPA databases CERCLIS and TIMS. Tribes interested
in viewing TASWER-derived data elements in relation to EPA's full data sets, including an
ability to sort/analyze/compare with other existing EPA data, may gain significant advantages
that help resolve then- information needs. This arrangement can also facilitate discussions
between Tribes and EPA to understand how EPA represents and uses this data in the databases
for program decision-making. Most importantly, incorporating TASWER data into EPA's
databases can help ensure that the data is fully accessible and free to all tribes.
As a result, OSWER agrees with the overall OIG recommendation for EPA data management
planning. We recognize that this information will be useful for shaping a detailed data-
management plan to meet the research needs of Tribes and TASWER's co-regulatory
responsibilities. It will help EPA to organize the selection and transfer of data shared from
TASWER to plan resources for data verification and incorporation into CERCLIS and TIMS.
AIEO also agrees with the recommendations. Since both EPA and TASWER must follow the
same quality control requirements under Order 5360.1 A2, to ensure that the environmental data
are of adequate qualily and usability for their intended purposes, EPA believes it makes sense to
address each recommendation together with TASWER.
Many of the findings raised by OIG are under active consideration by TASWER's contractor
and EPA, although the considerations are still in early stages. For example, TASWER's
contractor identifies five points of collaborative interest among their Project, EPA's data
collection efforts through the RCRAInfo Tribal Lands Project, and AIEO's TIMS project. These
points are generally recognized as starting points for developing a detailed data management
plan in coordination with the Agency (See Attachment B, page 23). EPA will use the OIG
recommendations, together with our quality system policy, as the basis for developing focused
data management activities and identification of resource needs for EPA.
Validation of the inventory by Tribes. EPA Regions, and Headquarters:
EPA recognizes that considerable data will be needed to determine "next steps" for sites
identified by TASWER. OGC has advised OSWER that a cooperative agreement would not be
the appropriate mechanism to collect such data as it would be inconsistent with EPA Order
5700.1, EPA's interpretation of the Federal Grant and Cooperative Agreement Act.
Ultimately, TASWER and the Tribes must decide how they want to manage over the long
term, the data they collect through identifying hazardous waste sites on Indian Lands. EPA
anticipates that the TASWER tribal data that EPA chooses to incorporate into CERCLIS will be
updated in a similar manner to other data in the CERCLIS system, through guidance in the
Superfund Program Implementation Manual (SPIM).
Storage of the initial data in a database:
This concern does not recognize that TASWER will be the repository for this data. TASWER's
database will be the storage medium for use by Tribes. EPA will coordinate with TASWER as
they develop their system to anticipate necessary transfer requirements of selected data elements
into CERCLIS (and TIMS).
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Transfer of selected data into CERCLIS:
EPA will work with TASWER to identify a transfer mechanism. EPA will determine resources
needed by EPA to transfer the selected data.
Storage of inventory data in CERCLIS using defined tribal data elements or attributes:
OSWER will continue to refine the CERCLIS tribal identifiers (currently found in the SPIM at
www.epa.gov/superfund/actionyprocess/pdfs/appdxe.pdf} in relation to expected needs. These
needs include baseline inventory information and internal tribal-specific goals and measures
under the new EPA Strategic Plan, currently under development.
Definition of inventory format:
EPA will work with TASWER to establish an inventory database structure that supports the
information management needs of both organizations.
OSWER and AIEO will begin more detailed discussions on collaborative data
management needs based on OIG recommendations. At this point, AIEO's primary concerns for
TIMS data collection and coordination with the TASWER proj ect are to:
• Develop mutually understood definitions across federal agencies for the data they
collect. For example, AIEO will use the definitions developed under the TASWER
Project for "hazardous waste sites" and other site types (i.e., open dumps) to develop
a protocol for tribes to use when they collect similar data under their GAP grants.
EPA wants to be able to use this data as part of updating/verifying the inventory.
• Develop Quality Assurance Plans (i.e., data quality objectives (DQOs)) for validating
collected data
TASWER's contractor has included the following tasks in its proposed workplan,
which are consistent with EPA activities (See Attachment B, page 8). The tasks outlined in the
first Quarterly Report for Identifying Sites in Indian Country include:
• Networking with and evaluating the differing definitions of hazardous waste sites
and verifying procedures from relevant federal agencies and subprograms.
• Developing a protocol for site documentation acceptable to these agencies, including
categorization of sites based on ground-truth verification level.
• Evaluation of TIMS and RCRAInfo with regard to their usefulness to Tribes, and
how these systems might be improved with regard to TASWER project aims of site
identification of future use to Tribes in funding and decision-making.
Actions on #4 Recommendations:
OSWER expects the following plan, conducted in collaboration with AIEO and
TASWER, will respond to the specific steps outlined in the OIG's recommendation by
addressing the:
a. Development of data quality objectives for accepting this set of data, noting the
approach for quality assuring the inventory data;
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I
b. Development of a data entry control plan outlining the requirements and methods
necessary to enter the inventory data into CERCLIS;
c. 1. Update of the Appendix J: Tribal Involvement of the Agency's current Superfund
Program Implementation Manual to revise and create new tribal data definitions as
necessary;
d.2. Creation of a CERCLIS/WasteLAN User Request (WURS) entry to generate/update
tribal data elements in CERCLIS;
e.3. Development of a CERCLIS/WasteLAN requirements analysis supporting the
creation/update of tribal data elements in CERCLIS;
f. Transfer of tribal inventory data to CERCLIS via a CERCLIS/WasteLAN revision;
g.l. Development of a CERCLIS/WasteLAN Tribal Data Quick Reference Guide
presenting key tribal data fields and the process for updating those fields within
WasteLAN;
h.2. Development of tribal reports within EPA's CERCLIS/WasteLAN and
Superfund eFacts applications for internal Agency use; and
i. 3. Include tribal data in the Agency's public Superfund web site.
If you have questions, please contact Felicia Wright on (202) 566-1886 or Johnsie Webster on
(202)566-1912.
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Appendix B
Distribution
Assistant Administrator, Office of Solid Waste and Emergency Response (5103)
Director, Office of Site Remediation and Technology Innovation (5201G )
Director, State, Tribal, and Site Identification Center (5204G)
Tribal Coordinator, Office of Solid Waste and Emergency Response (5101T)
Director, Office of Acquisition Management (3801R)
Comptroller (2731 A)
Agency Followup Official (271OA)
Agency Followup Coordinator (2724A)
Associate Administrator for Congressional and Intergovernmental Relations (1301 A)
Associate Administrator for Office of Public Affairs (1101 A)
Inspector General (2410)
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