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1 Office of Inspector General
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Report of Audit
Region 5fs Air Enforcement and
Compliance Assistance Program
Audit Report No. E1GAF5-05-0045-6100284
September 13,1996
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Inspector General Division
Conducting the Audit: Northern Audit Division
Chicago, Illinois
Region Covered: Region 5
Program Offices Involved: Air and Radiation Division
Office of Enforcement and Compliance
Assurance
Office of Public Affairs
Office of Regional Counsel
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UNITED STATES ENVffiONMENTAL PROTECTION AGENCY
fc OFFICE OF THE INSPECTOR GENERAL
| NORTHERN DIVISION
77 WEST JACKSON BOULEVARD
*****" CHICAGO, IL 60604-3590
September 13, 1996
MEMORANDUM
SUBJECT: Audit Report No. E1GAF5-05-0045-6100284
Region 5's Air Enforcement and Compliance Assistance Program
FROM: Anthony C. Carrollo
Divisional Inspector General* for Audits
Northern Division
TO: Valdas V. Adamkus
Regional Administrator
Region 5
A copy of the subject final report is attached. We appreciate the cooperation we received from
your staff in conducting this audit. The open lines of communication with the Region
throughout this effort have enabled us to agree upon recommendations that will benefit the
program.
This report contains findings and corrective actions Region 5 has proposed to take. The audit
report represents the opinion of the Office of Inspector General. Accordingly, the findings
described in the audit report do not necessarily represent the final EPA position and are not
binding upon EPA in any EPA or Department of Justice enforcement proceeding.
Action Required
In responding to the draft report, Region 5 provided corrective actions, including milestone
dates, for each of the recommendations. Therefore, we are closing this report in our tracking
system. Please track all planned corrective actions in the Management Audit Tracking
System.
We have no objections to the further release of this report to the public.
Should you or your staff have any questions, please contact Kimberly O'Lone, Audit
Manager, at (312) 886-3186 or Janice Miller, Team Leader, at (312) 886-3084.
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Region 5's Air Enforcement and
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EXECUTIVE SUMMARY
The Environmental Protection Agency's (EPA) Region 5 Air and
Radiation Division (ARD), and the states we reviewed, each had
some strong segments in their enforcement and compliance
assistance programs. The ARD and Michigan, for example,
assessed the economic benefit that violators gained from
noncompliance, when it applied. Also, Region 5 reorganized to
emphasize activities that help businesses voluntarily comply with
environmental laws, including the Clean Air Act (Act). In line
with this, the ARD and some Region 5 states assisted industries,
such as dry cleaners and chromium platers, to comply with the Act.
Region 5 and its states could also improve some aspects of their
programs. For example, they could help deter air pollution
violators by increasing publicity of enforcement actions. Indiana,
Illinois, and Wisconsin could benefit from ARD assistance in
calculating and collecting the economic benefit component of
penalties. Region 5's compliance assistance program needed
infrastructure components. Further, EPA's database for air
enforcement actions could be improved. Lastly, the ARD and the
states could work together to solve enforcement barriers they
faced.
AGENCY COMMENTS
AND ACTIONS The Regional Administrator, Region 5, has acted or agreed to act
to address the findings in our report. The corrective actions
include:
1. Developing a compliance assistance program infrastructure,
with a clear program direction, priorities, and performance
measures.
2. Developing a press release policy, including guidance on
which enforcement actions to publicize.
3. Discussing Aerometric Information Retrieval System
Facility Subsystem concerns with Headquarters' Office of
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Enforcement and Compliance Assurance officials, to begin
the process of trying to change the data requirements.
For details on the purpose and background of this report, see page
1. Details on our recommendations and Region 5's actions are at
the end of chapters 2 through 6.
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Table of Contents
EXECUTIVE SUMMARY i
CHAPTERS
1 INTRODUCTION 1
Purpose 1
Background 1
Scope and Methodology 4
Prior Audit Coverage 7
2 COMPLIANCE ASSISTANCE ACTIVITIES NEEDED PROGRAM
INFRASTRUCTURE 9
Background 9
ARD Compliance Assistance Activities 11
Region 5's Program Needed Further Development 13
Conclusion 16
Recommendations and Agency Actions 17
OIG Evaluation 17
3 DETERRING VIOLATORS; SOME STATES NEEDED TO ASSESS THE
ECONOMIC BENEFIT COMPONENT 18
Deterring Violators by Assessing the Economic Benefit 18
ARD and Michigan Assessed the Economic Benefit, While Some
States Did Not 19
Conclusion 22
Recommendations and Agency Actions 23
OIG Evaluation 23
4 DETERRING VIOLATORS: MORE PUBLICITY NEEDED 24
Deterring Violators Through Publicity 24
Press Releases Seldom Issued for Enforcement Actions 25
Conclusion 31
Recommendations and Agency Actions 31
OIG Evaluation 31
111
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5 ARD NEEDED TO WORK WITH STATES TO OVERCOME BARRIERS 32
More Communication on Federal Cases Needed 32
Enforcement Processes Were Time Consuming 34
Limited Use of Injunctive Relief and Stipulated Penalties 37
States May Need to Give More Oversight to Local Agencies 40
Conclusion 42
Recommendations and Agency Actions 42
OIG Evaluation 43
6 ARD ENFORCEMENT DATA WERE NOT COMPLETE OR CONSISTENT 44
Background 44
Data Were Not Complete 46
Data Definitions Varied 46
Potential Existed for Duplicate Records 49
Reasons ARD and States Did Not Use AFS 49
Conclusion 51
Recommendations and Agency Actions 51
OIG Evaluation 52
EXHIBITS
I SAMPLE SELECTION METHODOLOGY 53
Audit 53
Survey 54
2 SUMMARY OF PENALTIES FOR SAMPLE UNIVERSES 55
3 OIG AND GAO REPORTS 57
4 STATE COMPLIANCE ASSISTANCE ACTIVITIES 58
Indiana Five Star Recognition Program 58
Illinois Clean Break Amnesty Program 59
5 REGION 5 PRESS RELEASES 61
Example 1 61
Example 2 62
IV
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6 TOP BARRIERS TO EFFECTIVE AIR ENFORCEMENT 64
ARD Barriers 64
Indiana Barriers 65
Michigan Barriers 66
APPENDICES
1 REGION 5 RESPONSE TO DRAFT REPORT 69
2 ABBREVIATIONS 73
3 DISTRIBUTION 75
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VI
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CHAPTER 1
Introduction
PURPOSE
BACKGROUND
The Office of Inspector General (OIG), Northern Audit Division
performed an audit of the air enforcement and compliance
assistance program at Region 5. Our objectives were to determine:
if regional and state enforcement programs were designed
to deter companies from violations,
what barriers existed to effective air enforcement at the
regional and state levels, and
if the Environmental Protection Agency (EPA)
Headquarters or regions had useful, effective management
information systems for tracking enforcement actions
Our Southern and Western Audit Divisions are conducting similar
audits in Regions 6 and 9, respectively. We plan to consolidate the
results of all three audits in a separate report in 1997.
The Clean Air Act, as amended in 1990 (Act), gives EPA authority
to set national standards to protect human health and the
environment from emissions that pollute the air. The Act assigns
primary responsibility to the states for ensuring adequate air
quality. EPA is responsible for issuing regulations in support of
the Act.
Emissions regulations apply to two categories of air pollutants,
criteria and hazardous. Criteria pollutants are discharged in
relatively large quantities by many sources across the country.
EPA has set national standards for all six criteria pollutants:
ozone, carbon monoxide, sulfur dioxide, nitrogen dioxide, lead,
and particulate matter. The standards specify acceptable air
pollution concentrations for a geographic area. States are required
to meet those standards.
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Regulations also apply to hazardous air pollutants, or air toxics.
These pollutants come from specific sources, such as auto paint
shops, chemical factories, or incinerators. EPA has established
emissions standards for some air toxics, such as: asbestos,
beryllium, mercury, vinyl chloride, arsenic, radionuclides, and
benzene.
The Act defines EPA's air enforcement authority. This includes
administrative, civil, and criminal remedies:
Section 113 (a) provides administrative orders for
corrective action to comply, but does not provide for the
assessment of penalties. This section is also used if the
violator fails to respond to an information request.
Section 113 (b) allows for the initiation of civil judicial
action against certain violators to restore compliance and
recover a civil penalty of up to $25,000 per day per
violation.
Section 113 (c) defines criminal enforcement, including
fines and/or prison sentences.
Section 113 (d) gives EPA the authority to issue
administrative penalty orders. These orders may assess
penalties of up to $25,000 per day of violation. They are
generally authorized in cases where the penalty sought is
not over $200,000 and the first alleged date of the violation
occurred no more than 12 months prior to the initiation of
the administrative action.
Section 113 (d) (3) gives EPA the authority to create a field
citation program through implementing regulations. EPA
has not promulgated the implementing regulations yet.
Section 303 gives the EPA Administrator emergency
authority to address those situations that present an
imminent and substantial endangerment to public health,
welfare, and the environment.
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The Act also granted EPA information request authority, through
Section 114. This gives EPA the right to require any person
believed to have information relating to the Act to submit that
information to EPA.
States are primarily responsible for enforcement of the Act. The
states are expected to perform compliance evaluations and take
action against significant violators. The EPA regions have
concurrent authority to conduct compliance evaluations and take
enforcement actions. States can also pass their own legislation,
giving them separate enforcement authority. However, state laws
cannot be enforced at the Federal level.
If the EPA region, the state, or local authority learns a company
has violated a regulation, it can bring an enforcement action
against the company. The regions often identify violations by
reviewing monitoring data. The states may also identify violations
through inspections. A state inspector visits the company for a
scheduled, or unscheduled, inspection. If the inspector finds a
violation of the air regulations, the type of action the region or state
takes depends upon the nature of the violation. The state must
report all Federal violations to the region.
Federal enforcement actions often start with a Notice of Violation
(NOV). States have similar notices that generally serve the same
purpose. The NOV outlines: the statutory authority supporting the
NOV, what rules the company has violated, and the violations.
The NOV also has a cover letter that informs the company what the
next steps in the enforcement process are. The company is
encouraged to meet with regional or state representatives to begin
negotiating a settlement.
An important part of the settlement negotiation process, for
enforcement actions that will include a penalty, is agreement on the
penalty. Stationary source violations are subject to the Clean Air
Act Stationary Source Civil Penalty Policy (EPA Penalty Policy).
The EPA Penalty Policy outlines complex and detailed penalty
calculations. If the company reaches a settlement with the region
or state, depending on who had the case lead, the parties enter a
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formal agreement. This is a legal agreement that outlines the terms
of the settlement. EPA and some states can settle cases
administratively or judicially.
EPA's mandate to protect public health and safety depends on
effective enforcement. According to EPA's Five Year Strategic
Plan, "A strong deterrence-based enforcement program will
establish the type of climate that motivates compliance, encourages
innovation, and promotes prevention." To accomplish this,
enforcement actions must make a strong statement to the regulated
community.
There are at least three ways EPA and the states can make such a
statement. First, regions and states need to pro-actively seek out
industries, particularly small businesses, to assist them in coming
into compliance. This pro-active approach is called compliance
assistance. Second, enforcement actions that include penalties
should make it more expensive for companies to violate the law
than to be in compliance. This means that the penalty must recover
the economic benefit the violator gained by not complying with the
Act. Finally, the enforcement action must be publicized. This will
help the regulated community learn that EPA and the states have
strong enforcement programs. It will also help inform the public
about which companies violate the Act.
SCOPE AND
METHODOLOGY Our audit focused on EPA Region 5 Air and Radiation Division
(ARD) enforcement actions completed between October 1, 1993,
and June 30, 1995. This included all air enforcement cases
completed at the regional and state levels, except asbestos cases.1
We performed our audit work, including case file reviews and
interviews, at the following locations:
ARD in Chicago, Illinois;
1 We did not include asbestos cases in our sample because they had been reviewed in prior audit work and were
not tracked in the same database as other air enforcement cases.
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Indiana Department of Environmental Management
(Indiana) in Indianapolis; and
Michigan Department of Environmental Quality
(Michigan) in Lansing.
Prior to our audit, we conducted a survey. Our survey work
included case file reviews and interviews at:
Wisconsin Department of Natural Resources (Wisconsin)
in Madison and Milwaukee, and
Illinois Environmental Protection Agency (Illinois) in
Springfield,
Our first objective was to determine if regional and state
enforcement programs were designed to deter companies from
violations. To accomplish this, we interviewed regional and state
personnel from air enforcement, public affairs, and compliance
assistance programs. We also reviewed a sample of air
enforcement case files at the ARD, Michigan, and Indiana.2
Through our interviews and case file reviews, we determined
whether the ARD and the states:
implemented any compliance assistance programs,
had a method of publicizing enforcement actions,
publicized cases according to that method, and
recouped the economic benefit component through a
penalty.
We summarized our findings for this objective in three separate
chapters:
See exhibit 1 for our sample selection methodology for the audit and the survey. Also see exhibit 2 for the
overall summary of penalties for the sample universes.
5
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Chapter 2, Compliance Assistance Activities Needed
Program Infrastructure;
Chapter 3, Deterring Violators: Some States Needed to
Assess the Economic Benefit Component; and
Chapter 4, Deterring Violators: More Publicity Needed.
Our second objective was to determine what barriers existed to
effective air enforcement at the regional and state levels. To
accomplish this, we interviewed ARD and state air enforcement
personnel. Specifically, at the ARD, Indiana, and Michigan, we
discussed:
what difficulties, or barriers, officials encountered in
carrying out their air enforcement programs,
what the top three barriers to effective air enforcement
were, and
whether the ARD and the states worked together to resolve
the barriers.
We conducted file reviews to see if they confirmed the barriers the
officials discussed. Through the file reviews, we also identified
additional barriers not discussed in the interviews.
Our third objective was to determine if EPA Headquarters or the
regions had useful, effective management information systems for
tracking enforcement actions. To accomplish this, we interviewed
Headquarters, ARD, and state management, air enforcement
personnel, and Aerometric Information Retrieval System (AIRS)
Facility Subsystem (AFS) staff to determine:
how they used AFS,
whether AFS was an effective management information
system, and
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what alternative systems they used to track enforcement
actions and why.
We did not review APS to verify its accuracy. We did, however,
check the data against information found in the case files. We also
compared AFS reports to state reports for the same time period,
and followed up on any differences.
We performed our audit in accordance with the Government
Auditing Standards issued by the Comptroller General of the
United States ( 1 994 Revision). We also reviewed the ARD's 1994
and 1995 Federal Managers' Financial Integrity Act reports. The
reports did not identify any material weaknesses, or vulnerabilities,
related to air enforcement. We did not detect any material internal
control weaknesses during our audit.
We conducted our audit between September 7, 1995, and July 15,
1996. We discussed our position papers with Region 5 officials on
June 1 1, 1996, and July 2, 1996. We received written comments
from Michigan on June 27, 1996, and Illinois in a letter dated July
12, 1996. The remaining states did not provide comments on the
position papers. Comments to the position papers were addressed
in the draft report.
On July 26, 1996, we issued our draft report. The Regional
Administrator, Region 5, responded on August 22, 1996. We held
an exit conference with Region 5 officials on September 4, 1996.
After reviewing the response and conducting the exit conference,
we made appropriate changes and finalized the report. The
Regional Administrator's response is included as Appendix 1.
COVERAGE Both the OIG and U.S. General Accounting Office (GAO) have
issued reports in this area.3 The OIG issued a report on March 1 1,
1988, which addressed Region 5's stationary source of air pollution
compliance and enforcement program. As part of that audit, the
3See exhibit 3 for a list of the OIG and GAO reports.
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OIG reviewed 29 case files of stationary sources and found that 12
of the 18 significant cases were settled with penalties. Four of the
12 cases correctly calculated and documented the penalty amount.
Only two of the nine applicable cases recovered the economic
benefit.
In September J989, the OIG issued a report that summarized
previous audits on the computation, negotiation, mitigation, and
assessment of penalties under all EPA programs. According to this
report, many EPA regions and states inadequately calculated
penalties, reduced the proposed penalties excessively with little or
no documentation, and, in many cases, neglected to recover the
economic benefit of noncompliance.
In September 1994, the OIG issued a follow-up report on EPA's
mitigation of penalties. The follow-up report concluded that EPA
had successfully addressed the findings and recommendations of
the original report. Specifically, Region 5 adequately documented
penalties, and reductions complied with penalty policies. Region 5
also recovered the economic benefit violators gained by
noncompliance, when applicable.
GAO issued a report on September 27, 1990, showing that state
and local air enforcement programs assessed penalties in fewer
than half of their significant violator cases in fiscal years 1988 and
1989. In June 1991, GAO reported that, for cases concluded in
fiscal year 1990 in EPA's air, water, hazardous waste, and toxic
substances programs, there was no evidence that EPA collected the
economic benefit.
GAO also issued a related report in August 1995. This report
addressed EPA data gathering efforts imposed on states. GAO
concluded that a draft regulation would have imposed data
gathering requirements on the states that exceeded EPA's
minimum air pollution program needs. EPA suspended
development of the draft regulation.
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CHAPTER 2
Compliance Assistance Activities
Needed Program Infrastructure
Region 5 had reorganized, in part, to emphasize compliance
assistance, and had conducted some compliance assistance
activities. The Region had not yet, however, developed a core
program infrastructure. For example, the Region had not set a
clear direction, priorities, or performance measures. As a result,
ARD officials were not able to clearly communicate the
compliance assistance approach to staff. Some air enforcement
staff members were unsure of what compliance assistance was or
whether the Region supported it Many wanted training on
compliance assistance. The long range success of compliance
assistance depends upon development of the program infrastructure
and communicating it to staff.
BACKGROUND
Compliance assistance is one of the tools, in addition to
enforcement, used to achieve compliance. It is an approach that
encourages working in partnership and cooperation with
companies. Traditional enforcement actions single out individual
companies. Compliance assistance, on the other hand, can.
inform a large number of companies about regulations and
what they should do to comply, and
assist small first time violators to comply while avoiding
expensive judicial proceedings.
In March 1995, President Clinton issued the regulatory reform
initiative. This initiative instructed EPA to reduce the burden on
companies to comply with environmental regulations. The
initiative also established: (1) a grace period for small businesses
to correct identified violations, and (2) incentives for self-
disclosure and correction of violations. It encouraged EPA to work
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Region 5 Reorganized
to Reflect Roie of
Compliance Assistance
States Have Active
Compliance Assistance
Programs
with small businesses and companies that identified their own
violations.
In October 1995, Region 5 reorganized its air enforcement
functions to recognize compliance assistance. The reorganization.
created a new Region 5 Office of Enforcement and
Compliance Assurance (Region 5 OECA). This office is
the EPA Headquarters' Office of Enforcement and
Compliance Assurance (OECA) contact point in Region 5
for all enforcement and compliance assurance matters.
created the Region 5 Enforcement and Compliance Team.
The Region 5 Enforcement Coordinator oversees the team,
which includes representatives from alt Region 5 media
divisions, the Office of Regional Counsel (ORC), Office of
Public Affairs (OPA), Office of Strategic Environmental
Analysis, and the OIG.
centralized the air enforcement staff into the ARD's Air
Enforcement and Compliance Assurance Branch.
Formerly, these staff members were located within three
separate air branches.
Region 5 OECA and the Enforcement and Compliance Team set
the Region's compliance assistance policies. This includes
defining compliance assistance and developing guidelines
explaining when using compliance assistance is more appropriate
than traditional enforcement. The Air Enforcement and
Compliance Assurance Branch carries out both the enforcement
and compliance assistance activities for air.
State compliance assistance programs vary, but often center on
permits and outreach to small businesses. Section 507 of
the Act required states to establish small business assistance
programs. EPA Headquarters has a small business ombudsman
who has some oversight responsibility. EPA's regional offices
have a limited oversight role on state compliance assistance
programs. See exhibit 4 for examples of two state compliance
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assistance programs: (1) the Indiana Five Star Recognition
Program for dry cleaners, and (2) the Illinois Clean Break Amnesty
Program for small businesses.4
ARD COMPLIANCE
ASSISTANCE
ACTIVITIES
The ARD has conducted compliance assistance activities, usually
educational outreach, in response to new or anticipated regulations.
These outreach activities have encompassed many industries:
petroleum refineries, dry cleaners, chromium platers, quarries and
rock crushers, and incinerators. ARD engineers also provide
compliance assistance daily. For example, company
representatives often call to ask whether a regulation applies or if
installing specific equipment will bring them into compliance. The
engineers informally help them comply with regulations.
4We did not evaluate these programs. Our information is based on interviews with state officials and a report
state officials prepared.
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EXAMPLES OF ARD COMPLIANCE ASSISTANCE
Timely Outreach to Dry Cleaners
ARD staff members led a compliance assistance effort for dry cleaners. Dry
cleaners were required to comply with maximum available control technology
standards for air toxics, issued in September 1993. Because many dry cleaners
are small businesses, it was not cost effective to pursue numerous enforcement
actions against them. ARD staff members conducted an education and outreach
program shortly after the standards were issued. This included developing
brochures and fact sheets mailed to all dry cleaners in Region 5. The outreach is
now more active at the state levels.
Coordinating Assistance to Chromium
Platers to Reduce Air Toxics
EPA issued maximum available control technology standards for chromium
platers in January 1995.' Many chromium platers are small businesses. The Air
Enforcement and Compliance Assurance Branch chromium platers workgroup
served as a liaison between Headquarters and the states to provide information
to the businesses. The information included what the standards were and what
the businesses needed to do to comply with the standards. The workgroup also
helped Ohio and Wisconsin identify chromium platers and helped all Region 5
states determine which companies were subject to the standards.
Advance Work to Encourage Reduction
of Dioxin from Incinerators
In anticipation of incinerator regulations that Headquarters will soon issue, ARD
staff members are encouraging incinerator owners and operators in Region 5 to
test for dioxin, a human health hazard. The regulations will establish maximum
dioxin levels. ARD staff members hope they can work with the incinerator
owners and operators to reduce the dioxin levels before the regulations are
issued.
ARD staff members also participate on the Illinois Medical Waste Accord. The
accord members seek to work with all interested parties to reduce medical
waste, before it gets to the incinerator. Reducing waste is much more cost
effective than trying to add on pollution prevention controls at the incinerator
process.
5Chrornium platers apply chrome to products such as toasters and car bumpers.
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REGION 5'S
PROGRAM NEEDED
FURTHER
DEVELOPMENT
More Information
on Compliance
Assistance Needed
The Region 5 compliance assistance program was evolving. As it
changed, there were program infrastructure areas that Region 5
needed to develop further. For example, as of July 1996, the
program did not yet have a clear direction or priorities. Also, to
evaluate the activities, Region 5 management needed to define
performance measures. Finally, ARD management needed to
provide training on compliance assistance to Air Enforcement and
Compliance Assurance Branch engineers.
The Regional Administrator, Region 5, emphasized the need for
goals and performance measures, in his memorandum outlining
fiscal year 1996 priorities. He stated, "In particular, we need to do
a better job of defining our GOALS for each priority and
determine how we will MEASURE our progress toward achieving
success." Enforcement and compliance assurance were included as
Region 5 priorities needing such goals and measures.
In February and again in April 1996, we sent surveys on
compliance assistance to 15 of 38 Air Enforcement and
Compliance Assurance Branch engineers.6 The surveys focused on
a variety of areas, including:
the definition of compliance assistance,
the ARD management position toward it,
the need for training,
if the engineers had used or could use compliance
assistance in their cases, and
what barriers existed to its use.
Thirteen ot'the 15 randomly selected engineers responded. Eleven responded to the first survey in February.
We surveyed all 15 engineers again in April, after the Enforcement and Compliance Team issued a draft compliance
assistance policy. Seven engineers responded to the April survey. Of these seven, two had not responded to the first
survey.
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We concluded, based on the surveys, that some engineers did not
know enough about compliance assistance. For example, when we
asked what their definition of compliance assistance was, we
received a variety of responses. Although there were several good
definitions, many engineers did not have complete definitions.
One engineer did not even have a definition. The majority of
engineers responded that they were basing their definitions on
opinion and word-of-mouth, rather than information received from
management.
When asked what the ARD's current position was on compliance
assistance, most of the engineers thought ARD management
supported it. However, three engineers thought the ARD was
against compliance assistance, instead leaning more toward
enforcement. The remaining engineers either thought ARD
management did not have a position toward compliance assistance
or did not know what that position was. For example, two
engineers responded:
I think Region 5 ARD is trying to move towards it
[compliance assistance], given the fact that even the
name of the Enforcement Branch became Air
Enforcement and Compliance Assurance Branch. I
have seen, however, no major changes in our
operating procedures.
Generally, I think they think it's a good thing and
the wave of the future, but I'm not sure that anyone
has figured out exactly what it is, what it means to
our programs, and how it should be implemented.
In response to questions on barriers to compliance assistance and
what kinds of training would be most beneficial, two survey replies
indicated that some engineers wanted more information on
compliance assistance:
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Compliance Assistance
Infrastructure Needed
. . . knowing exactly what it is and how
[Headquarters] expects [it] to be used would be
helpful.
. . . [training on] what the Region expects of us, how
they define compliance assistance, examples, etc.
Region 5 needed to develop an infrastructure for the compliance
assistance program. As discussed in the April 1995 report from the
National Academy of Public Administration (NAPA), EPA as a
whole needed to redesign and improve its management operations
to support its new direction.7 NAPA stated that, among other
things, EPA should establish specific environmental goals and
develop strategies to attain them. We believe parts of this
approach can be applied, on a smaller scale, to Region 5's
compliance assistance program.
Because compliance assistance is still a developing program, this is
a good opportunity to develop a strong infrastructure. Based in
part on the principles NAPA outlined, this means: (1) Region 5
should establish a clear direction for compliance assistance; (2) the
Region needs to set priorities; (3) ARD management should
communicate the program to staff through training; and (4) after
the activities have been implemented, Region 5 needs to evaluate
the results.
Program Direction Setting a clear direction involves establishing general guidance,
goals, and a strategy. The Enforcement and Compliance Team has
begun to take steps to do this; in July 1996, it issued a policy
statement on appropriate uses of compliance assistance and
enforcement. Further work is needed to set long-term goals and
decide what kinds of activities Region 5 will and will not pursue.
The Enforcement and Compliance Team also needs to establish a
program structure, including how it will interact with other
Regional teams that would like to carry out compliance assistance
activities.
7Setting Priorities. Getting Results: A New Direction For the Environmental Protection Agency. National
Academy of Public Administration., April 1995.
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Setting Priorities
Training
Evaluating
Results
CONCLUSION
In setting priorities, Region 5 officials first need to establish some
general priorities for compliance assistance, based on the program
direction. Then, they need to develop more detailed strategies.
These should define the key activities and programs Region 5 will
undertake in the short term. It is important for Region 5 to
consider what the states are already doing in compliance assistance
to avoid duplicating their efforts.
ARD management needs to communicate the infrastructure to
enforcement staff through training. Engineers could benefit from
training that defines the Regional and ARD role in compliance
assistance. Almost all of the engineers responded to our surveys
that they had not received training on compliance assistance.
Seven indicated that they would like training. Three engineers did
not know whether training would be helpful. Usually, these were
engineers that did not know whether ARD management supported
compliance assistance. Without clear ARD support for compliance
assistance, the engineers might not know whether training was
necessary.
Training would also help ensure that ali staff members received the
same information. Staff members could benefit from learning
about the success of some Regional and state compliance
assistance programs. This would help staff recognize the
industries or businesses that could best benefit from compliance
assistance.
Finally, Region 5 needs to evaluate the results of its compliance
assistance activities. Evaluating the activities and learning from
experience should help guide decisions about new priorities. For
example, Region 5 officials should consider when compliance
assistance to a targeted industry peaks. When this happens, the
Region should move on to a new area.
The compliance assistance activities in Region 5 need program
infrastructure and staff members need to learn about it. Staff
members must feel confident that management at each level
supports and encourages adoption of the program. Early support
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and adoption of the program by staff is crucial to the success of the
program. The increased focus on compliance assistance makes it
very important that the program have infrastructure components
such as a clear direction, priorities, and performance measures.
Without these elements, the program will not reach its full
potential. With these elements, the program will be stronger and
more efficient. Also, Region 5 management will be able to
objectively measure and report the program accomplishments.
RECOMMENDATIONS
AND
AGENCY ACTIONS
OIG EVALUATION
We recommended and the Regional Administrator, Region 5,
agreed that the Enforcement and Compliance Team would:
2-1. Develop a regional compliance assistance strategy that will
incorporate all of the issues discussed in this report, by
September 30, 1996,
2-2. Provide training on the Region's compliance assistance
projects and the strategy to affected regional staff,
including ARD, by January 1, 1997.
Region 5's actions, when completed, will address our findings and
recommendations.
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CHAPTER 3
Deterring Violators: Some States Needed
To Assess The Economic Benefit Component
DETERRING
VIOLATORS BY
ASSESSING THE
ECONOMIC BENEFIT
ARD and Michigan staff used penalties, including those based on
economic benefit, to deter companies from violations. They
assessed the economic benefit component in all but one of the
sampled cases to which it applied. Indiana, Illinois, and Wisconsin
officials, however, did not usually assess the economic benefit.
This occurred because: (1) Indiana and Illinois officials did not
have information request authority; (2) Illinois and Wisconsin
officials did not have administrative penalty authority; and (3)
based on their experience, Illinois officials did not believe the
Illinois courts or Pollution Control Board would uphold their
assessment of an economic benefit. As a result, if enforcement
officials assessed penalties that did not recover the economic
benefit component, they allowed violators to gain an advantage by
avoiding or delaying the costs of complying with air pollution laws
and regulations. Also, if state enforcement actions did not deter
companies from violating the Act, the companies were more likely
to ignore emission limits and continue polluting the environment.
By not complying with the Act, companies can save money, or
realize an economic benefit. In many cases, they save money by
delaying or avoiding expenses. For example, a company may
delay installation of pollution control equipment until EPA or a
state takes an enforcement action. In other cases, companies try to
avoid expenses by disconnecting pollution control equipment or
not hiring enough trained staff to monitor emissions.
Based on EPA's Penalty Policy, all penalties should include two
components: economic benefit and gravity. The economic benefit
component: (1) is important to "level the playing field" among
companies within an industry, and (2) eliminates any economic
advantage violators gain through delayed or avoided costs. The
gravity component reflects the seriousness of the violation, and
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represents: (1) the actual or possible harm resulting from a
violation, (2) the importance of the violation to the regulatory
scheme, and (3) the size of the violator. For our work, we focused
on the economic benefit component, because it is important that
companies learn it is better to comply with environmental
regulations than to ignore them or wait for EPA or the states to
identify their violations. EPA's Penalty Policy provided that "any
penalty should, at a minimum, remove any significant economic
benefit resulting from noncompliance." The policy allowed more
flexibility in assessing the gravity component.
The enforcement staff members should calculate and propose a
penalty, then they may negotiate a settlement with the company.
Enforcement officials may reduce penalties through negotiations,
but the minimum amount collected should be the economic benefit.
According to EPA's Penalty Policy, negotiators have the discretion
not to seek the economic benefit component where it is less than
$5,000, considering the impact on the violator and the size of the
gravity component. The total penalty, the economic benefit and
gravity components, also may be mitigated due to litigation risk or
the violator's inability to pay. The EPA's small business and self-
disclosure policies allow mitigation or elimination of the gravity
portion of a civil penalty for qualifying companies. Enforcement
officials maintain the right to collect the full amount of any
economic benefit associated with a violation.
The economic benefit is a key component of a civil penalty.
However, the economic benefit does not apply in state cases
involving: (1) regulations that are not Federally enforceable, or (2)
non-significant violators. These cases are not subject to EPA's
Penalty Policy.
ARD AND MICHIGAN
ASSESSED THE
ECONOMIC BENEFIT,
WHILE SOME
STATES DID NOT
As shown in table 1, ARD and Michigan enforcement officials
assessed the economic benefit component, when applicable.
Indiana and Illinois officials, however, usually did not. Wisconsin
enforcement staff did not assess penalties for any of the cases in
our sample.
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Table I: Economic Benefit Assessed"
ARD Assessed the
Economic Benefit,
When Applicable
Michigan Assessed the
Economic Benefit,
While Other States
Usually Did Not
Economic Benefit
Assessed?
Yes
No
ARD
5
1
Michigan
4
0
Indiana
3
3
Illinois
3
3
Wisconsin
0
4
ARD officials assessed the economic benefit component, when
applicable. The ARD sample included 10 cases. The economic
benefit applied to six. ARD staff collected the economic benefit in
five of the six. In the sixth case, the final penalty was not high
enough to recover the economic benefit. The case file showed the
enforcement officials reduced the penalty in accordance with
EPA's Penalty Policy, based on the company's financial condition
and ability to pay calculations.
Michigan enforcement officials assessed the economic benefit
component, when applicable. For different reasons, Indiana,
Illinois, and Wisconsin officials usually did not. Indiana and
Illinois officials were not able to calculate the economic benefit
because they did not have information request authority. Illinois
and Wisconsin officials also did not have administrative penalty
authority. Finally, based on their experience, Illinois officials
believed the Illinois courts and the Illinois Pollution Control Board
did not support Illinois' assessment and collection of an economic
benefit component.9 Penalties that do not include an economic
benefit component do not eliminate the economic advantage
companies gain by violating the Act. Without the economic
benefit, it continues to be less expensive for a company to violate
the law than to comply with it. This reduces the deterrent effect of
the penalty. By not assessing penalties with an economic benefit
8The table does not include cases in which the economic benefit was not applicable.
The Illinois Pollution Control Board has authority to conduct hearings about complaints charging violations of
the Illinois Environmental Protection Act.
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component, enforcement officials may have also allowed violators
to gain an advantage over other companies in their industry.
Michigan
Indiana
Illinois
Michigan enforcement officials supported collecting the economic
benefit and they assessed it when applicable. Of the 10 Michigan
cases we reviewed, the economic benefit applied in four instances
and Michigan staff assessed it in all four. Although Michigan staff
did not have information request authority, they required violators
to provide economic benefit information as part of the negotiation
process. If a company refused to cooperate, Michigan staff would
threaten escalated enforcement action or ARD involvement.
Indiana enforcement officials did not consistently assess the
economic benefit component. It applied to six of the 11 sampled
cases. Of these six, Indiana staff assessed the economic benefit in
three instances. They found it difficult to calculate the economic
benefit because they did not have information request authority.
Also, Indiana officials did not always collect the full benefit,
because they often reduced penalties during settlement
negotiations.
Indiana officials were reluctant to ask ARD officials for help in
calculating or collecting the economic benefit. They said they
thought the ARD would take over the case, instead of simply
providing information or assistance. Indiana officials recently
asked if the ARD could delegate information request authority to
them. ARD officials responded by letter on June 21, 1996,
detailing the requirements the state had to meet to receive the
delegated authority.
Illinois officials sometimes collected the economic benefit, but
usually did not formally calculate it, when determining an
appropriate penalty. They assessed the economic benefit in three
of the six sample cases. Illinois enforcement staff found it difficult
to obtain information for economic benefit calculations without
information request authority. They also did not have
administrative penalty authority, thus reducing their control over
the final penalty. Illinois officials believed, "The principles of
deterrence, restitution and retribution have not been widely
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Wisconsin
CONCLUSION
Region 5's Air Enforcement and
Compliance Assistance Program
embraced by Illinois courts or the Pollution Control Board." With
information request and administrative penalty authority, it might
still be difficult for Illinois officials to assess the economic benefit
component. Despite this, Illinois officials, like Indiana, asked
whether the ARD could delegate information request authority. In
June 1996, ARD officials also sent Illinois a letter explaining the
requirements.
Illinois enforcement officials did not have administrative penalty
authority but they could assess penalties judicially by referring
cases to the Illinois Attorney General's Office. However, there was
a backlog of cases in the Attorney General's Office and few
referrals were resolved in less than six months. Also, the Attorney
General's Office resolved some cases informally, or verbally.
Therefore, it was difficult for Illinois enforcement officials to
assess penalties without administrative authority.
Wisconsin officials did not assess penalties, or the economic
benefit component, for any of the cases in our sample. They had
trouble collecting penalties because, like Illinois, they did not have
administrative penalty authority. Enforcement staff had to go
through Wisconsin's Department of Justice to collect penalties
from violators. Enforcement officials stated the Wisconsin
Department of Justice typically did not accept air enforcement
cases, so Wisconsin collected few penalties. Enforcement officials
tried to obtain administrative penalty authority from the Wisconsin
legislature, but the request was not approved.
Companies sometimes try to save money by not complying with
air pollution regulations. To deter companies, enforcement
officials must include the economic benefit component in their
penalty calculations. ARD officials must encourage Indiana,
Illinois, and Wisconsin officials to assess the economic benefit
component, so they do not allow companies to gain an advantage
over their competitors by violating air pollution regulations. ARD
staff should offer to work more closely with Indiana and Illinois
officials to help them calculate and assess the economic benefit.
They should also work with Wisconsin officials to help them
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collect penalties. Working together, the ARD and the states can
come closer to ensuring that each enforcement action has the
maximum potential to deter companies from violating the Act.
RECOMMENDATIONS
AND We recommended and the Regional Administrator, Region 5,
AGENCY ACTIONS agreed that:
3-1. ARD officials will discuss recovery of the economic
benefit component with the states and will work through
the Region 5 OECA to include the economic benefit in
Environmental Performance Partnership Agreement
discussions. These discussions are targeted to conclude
January 1, 1997.
3-2. If Indiana and Illinois officials decide they want delegation
of information request authority, ARD officials will process
their requests within 60 days. In the meantime, ARD
officials will continue to offer and provide assistance to the
states for air enforcement penalty calculations.
OIG EVALUATION
Region 5's actions, when completed, will address our findings and
recommendations.
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CHAPTER 4
Deterring Violators: More Publicity Needed
DETERRING
VIOLATORS
THROUGH PUBLICITY
The ARD, Indiana, and Michigan seldom publicized enforcement
actions to deter companies from violating air pollution regulations.
The OPA did not issue some press releases because they were not
approved timely. Also, other press releases we reviewed did not
contain certain information about the violations or their impacts on
the community. Indiana and Michigan enforcement officials were
reluctant to publicize enforcement actions, because they did not
want to draw attention to their programs from state legislators.
Without publicity: (1) companies may not have believed the ARD
or the states would identify and enforce against violators; and (2)
the public may not have pressured companies to come into, or
remain in, compliance. The OPA recently took steps that could
address some of these concerns.
Publicizing enforcement actions deters violators by increasing the
regulated community's awareness of regulations and the
consequences of noncompliance. Businesses hope to avoid the
costs of noncompliance and prevent damage to their public images.
As a former EPA Deputy Administrator said in January 1994,
companies want to comply with environmental regulations to
protect their public images and maintain customers.
EPA can use public opinion to help bring violators into compliance
by strategically publicizing significant enforcement actions. In the
November/December 1995 issue of the Environmental Forum, the
Deputy Assistant Administrator for Enforcement and Compliance
Assurance wrote:
. . . agencies are realizing the potential power of
enlisting the public and appropriate segments of the
regulated community in ensuring compliance and
promoting behavior that goes beyond. The public's
role will be to use its right to know as a tool to
motivate industry and government.
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PRESS RELEASES
SELDOM ISSUED
FOR ENFORCEMENT
ACTIONS
As citizens learn about violators, they may pressure companies to
come into compliance or risk losing customers. The public also
may pressure government to enforce regulations and penalize
violators. The EPA's Five Year Strategic Plan reports that OECA
will improve "public access to compliance information, thereby
empowering consumers and communities to make informed
choices and to participate more effectively in the regulatory
process."
In the ARD, Indiana, and Michigan file reviews, we found that
officials seldom publicized enforcement actions, although they
supported publicity as a deterrent to companies. As shown in table
2, press releases were issued in five of the 31 cases we reviewed.
The lengthy approval process may have prevented OPA from
issuing some air press releases. State enforcement officials rarely
publicized enforcement actions because they did not want to draw
state legislators' attention to their programs. While publicity may
draw unwanted attention to strong enforcement actions, it may also
generate citizens' interest. These citizens may influence legislators
to support enforcement activities and help compel companies to
come into compliance.
Table 2: Press Releases Issued
Press Release Issued?
Yes
No
Total
ARD
3
7
10
Indiana
1
10
11
Michigan
1
9
10
Total
5
26
31
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Publicity for ARD
Enforcement Actions
Lengthy Approval
Process Prevented
Issuance of Press
Releases
ARD officials supported publicizing enforcement actions. In their
opinions, publicity increased public awareness of EPA actions and
the regulated community's awareness of requirements and the
consequences of noncompliance. Some ARD engineers believed
that publicizing enforcement actions prompted companies to come
into compliance more quickly. To help publicize enforcement
actions, the ARD Director wanted press releases issued at every
stage of the enforcement process, including NOVs, administrative
penalty orders, and final orders.
Despite ARD management's support for publicizing all
enforcement actions, press releases were issued for only three of
the 10 cases in our sample. ARD engineers prepared draft press
releases for three other cases. However, OPA staff did not issue
them. The remaining four cases in the sample did not have draft or
issued press releases.
According to an OPA staff member, the lengthy approval processes
within the OPA and the ARD prevented releases from being
issued timely. OPA officials had not formally defined what a
timely press release was, but stated that a release was considered
timely if OPA issued it within a few days of the enforcement
action. Lack of timely approval limited the significance of a press
release and its potential to deter violators.
A press release went through many levels of review before the
OPA issued it. First, an ARD engineer prepared a draft press
release and submitted it to a Section Chief for review. Then, the
Section Chief forwarded the draft to the OPA. An OPA public
affairs specialist essentially rewrote the draft and sent it to the
editor, along with a standard concurrence form. The public affairs
specialist revised the draft, according to the editor's comments, and
sent the edited draft back to the ARD engineer.
At least three ARD officials reviewed and commented on the draft,
before returning it to the OPA. First, the engineer reviewed the
release for technical content and forwarded it to the appropriate
Section Chief for approval. Then, the Branch Chief reviewed the
release. Next, the Division Director reviewed press releases for
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any significant cases or those that included his quotes. Finally, the
ARD returned the release to the OPA. The public affairs specialist
revised the release according to any comments from the ARD and
submitted it to the OPA Section Chief and the OPA Director for
approval and issuance. The long review processes in the OPA and
the ARD delayed the approval of some press releases.
The OPA did not issue press releases for some of our sample cases
because they were not timely. For example, one draft press release
was not approved until almost one month after the review process
began. On January 6, 1994, an ARD Section Chief sent a draft
press release to the OPA. After an OPA official rewrote the press
release, she returned it to the ARD. The engineer signed off on it
on January 24, 1994, and the ARD Section Chief approved it by
January 26, 1994. However, the Branch Chief did not sign it until
a week later, on February 2, 1994. The OPA did not issue the
press release since it was nearly a month old
ARD officials did not always allow enough time for approval of
press releases. Sometimes, they sent draft press releases to the
OPA on the same day or just before they issued the enforcement
actions. For example, in the above case, the Section Chief sent the
draft press release to the OPA only one day before the
administrative penalty order was issued. The Section Chief asked
OPA to respond to his memo within 30 days and said the ARD
wanted to issue the press release within "a number of days of the
issuance of the enforcement action." Because the Section Chief
did not give the OPA any lead time, OPA officials could not have
issued the press release timely, even if the approval processes were
streamlined.
Evaluation of ARD According to ARD and OPA staff members, press releases are
Press Releases more likely to be picked up by the media if they are relevant to a
community. For example, if the OPA issues a press release about a
company that is the largest employer in a small community, a local
newspaper will likely write a story or at least publish the press
release. ARD and OPA staff members agree that press releases are
more likely to gain attention if they include a description of the
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health impacts on the public or the environment. Press releases
should also be easy to read and understand.
Some of the press releases we reviewed did not include clear
explanations about the violations or potential effects on the
communities. For example, we reviewed one press release that did
not explain what opacity violations were, or include details about
the impacts of the violations on the community. The press release
also did not give the date the ARD and the violator signed the
consent agreement and consent order, or explain what these legal
documents were. See exhibit 5, example 1 for a copy of the
release.
The OP A issued some press releases, on the other hand, that
contained: (1) descriptions of the violations, (2) an estimate of the
emissions in easy to understand terms, (3) explanations of the
impacts on the community, and (4) a quote from the Regional
Administrator. For example, an October 20, 1993 release included
information about the violations and quantified the violation:
. . . emissions from the combustion stack at LTV's
coal battery have exceeded the allowed limits for
paniculate matter (smoke, soot). According to stack
tests, LTV is emitting paniculate matter almost
three times over the limit.
The press release also included an explanation of the health risks:
Paniculate matter can irritate the human respiratory
system. The elderly, children, and people with
existing respiratory and cardiovascular ailments are
most at risk. In addition, particulate matter can
contribute to urban haze and reduce visibility.
See exhibit 5, example 2 for a copy of the release.
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Recent OPA
Actions
Publicity for Indiana and
Michigan Enforcement
Actions
The OPA has begun taking actions that may address some of our
concerns. To begin streamlining the press release approval
process, in October 1995, the OPA Director removed herself from
the chain of approval. To further improve operations, the OPA
Director said that she planned to issue a press release policy for
Region 5. The policy would address three main areas: (1)
guidelines for deciding which press releases the media was more
likely to pick up, (2) time frames for preparing and issuing press
releases, and (3) content of press releases. The Director hoped this
policy would improve the OPA's efficiency and increase the
number of press releases issued. Based on the policy, the program
offices would prepare draft press releases for actions that were
inherently more newsworthy. This would decrease the number of
draft releases forwarded to the OPA and help focus resources on
actions the media was more likely to write stories about.
ARD and OPA staff also tried a new process for issuing press
releases, to help the press releases gain media attention. Staff
members batched some individual press releases by geographic
area or industry to increase the likelihood that the media would run
stories on them. For example, OPA staff issued a single press
release for the ARD enforcement actions against 12 small
Michigan auto repair facilities. This release included: (1) a list of
the violators, (2) proposed penalties, (3) a description of the
regulation, (4) information on potential health risks, and (5) a
quote from the ARD Director. A local Michigan newspaper ran a
story based on the press release.
Indiana and Michigan enforcement officials also supported
publicizing enforcement actions. State enforcement officials
publicized regulations and enforcement through trade journal
articles and presentations at public forums. However, enforcement
officials in the two states were reluctant to publicize enforcement
actions with press releases because they did not want to draw the
attention of state legislators to their programs.
Based on our case file reviews in Indiana and Michigan, the state
enforcement staff rarely publicized enforcement actions. As
shown in table 2 on page 25, Indiana staff issued a press release for
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one of the 11 cases in our sample. In Michigan, officials
publicized one of the 10 cases we reviewed. Michigan
enforcement officials told us they prefer not to issue press releases
for minor violations because they do not want to appear heavy-
handed. Publicizing cases for minor violations, according to
Michigan officials, ". . . could lead to additional scrutiny of the
program, interference by legislators or others in specific settlement
negotiations, or changes in the law to reduce penalty amounts or
other enforcement authorities." Michigan officials do publish a 30
day public comment period notice for each consent order they
issue.
Alternate Vehicles Press releases were not the only vehicles for publicizing
for Publicity enforcement actions. ARD and state enforcement staff also
reached the regulated community and the public through the
Internet and presentations at industry meetings. For example, the
ARD had its own "Home Page" on the Internet. Items on the
Internet included weekly activity reports, summaries of ARD
enforcement actions, and state enforcement agreements. Also,
beginning in March 1996, OP A staff placed press releases on the
Internet. Having information available through the Internet makes
the clarity and readability of ARD press releases even more
important because they will be accessible to people with widely
varying levels of expertise and knowledge of environmental
regulations.
ARD and state staff members also used presentations at industry
meetings as another way to deter potential violators. The ARD
Section Chiefs thought the presentations were important because
they explained: (1) new standards, (2) the impacts of the standards
on the industry, and (3) what companies must do to comply. The
travel costs and registration fees have forced ARD management to
limit the number of meetings staff members attended. ARD has
been publishing technical papers in trade journals and placing them
on the Internet. This may help mitigate the effects of limited travel
funds, while still providing information to the regulated
community and individuals.
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CONCLUSION
RECOMMENDATIONS
AND
AGENCY ACTIONS
OIG EVALUATION
Publicizing enforcement actions has the potential to deter violators
and turn the public into a growing source of support for
enforcement actions. Yet, we found few publicized cases. Limited
publicity restricts the potential to deter violators and prevents
public awareness of enforcement actions. ARD and OPA officials
have begun taking actions that may help to resolve some of our
concerns about publicity. We encourage them to continue these
efforts.
We recommended and the Regional Administrator, Region 5,
agreed that:
4-1. The ARD and the OPA will use a streamlined process for
reviewing press releases. These offices have already
streamlined the review process in response to our draft
report. The OPA has also taken a more active role in the
initial drafting of press releases to minimize rewrites.
4-2. The OPA will develop a regional press release policy by
December 31, 1996. A section of the policy will include
guidance, developed jointly between the OPA and the
Enforcement and Compliance Team, on which enforcement
actions to publicize.
4-3. ARD officials will discuss publicity and press releases with
state officials by January 1, 1997. The Regional
Administrator cautioned that some states have different
philosophies on publicizing enforcement actions, making
uniformity unlikely.
Region 5's actions, when completed, will address our findings and
recommendations.
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CHAPTER 5
ARD Needed to Work with States
To Overcome Barriers
MORE
COMMUNICATION
ON FEDERAL
CASES NEEDED
States faced many barriers to effective air enforcement programs.
State officials identified ARD actions as barriers in two areas:
limited communication on Federal cases and a lengthy
enforcement process. Most of the other barriers were internal to
the state programs, such as not using available tools to make
enforcement orders stronger, and not providing local agencies with
enough oversight. Although state officials seldom cited the ARD
as a cause of problems, ARD officials can help to resolve these
barriers. The barriers resulted in less effective enforcement
programs and generally frustrated state officials.
ARD and state officials told us about the barriers their enforcement
programs faced. We discuss below those barriers that were
common across states. See exhibit 6 for the ARD and state
rankings of their top three barriers to effective enforcement.
ARD staff members needed to increase communication with states
on Federal cases. Continuous two-way communication between
EPA and the states is important in developing effective region-
state partnerships. Because of periodic enforcement conference
calls, communication between the ARD and states had improved
from previous years, according to state officials. However, while
ARD enforcement personnel thought they were communicating
adequately with the states, officials from the four states we spoke
to were unanimous in saying that they needed more information on
Federal cases. ARD officials usually notified the states about
Federal actions during the conference calls. The calls by
themselves, however, did not provide state officials with timely
information. If state officials were not aware of the ARD's planned
actions, they could duplicate work or take a stance different from
the ARD's.
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State officials felt it was important to know the status of Federal
cases in their state. It was particularly important for them to know
what actions the ARD was planning. For example:
Indiana and Illinois officials said the ARD could provide
more timely information on Federal cases. While the ARD
usually notified the states before issuing a NOV, it was
often late in the process. Illinois officials said the ARD
gave them a one or two day warning before issuing the
notices. Indiana officials said that, as a result, the ARD
could issue a NOV at the same time the state was preparing
to issue one, causing duplicate work.
Wisconsin officials stated that, on cases they deferred to the
ARD, they usually did not hear about progress until ARD
officials had made a decision. They also said notice before
the ARD issued administrative orders would be helpful, so
Wisconsin did not take a different stance. Companies may
interpret this as the ARD and Wisconsin working at cross-
purposes.
Michigan officials said ARD personnel could not always
provide answers about Federal cases during monthly
enforcement conference calls. The ARD usually had one or
two people present for these calls. These were staff
members that had obtained updates from the ARD
engineers. If Michigan officials had a specific question on
a Federal case, the appropriate person to answer the
question was not usually on the call.
In contrast to the state officials' views, ARD personnel thought, for
the most part, that communication with states was adequate. The
ARD's Michigan/Wisconsin section chief believed that he and the
staff members participating in the conference calls answered all
questions posed about Federal cases. If, however, questions about
a specific case arose during the call, he invited the appropriate
engineer to participate as well. Most of the ARD engineers we
surveyed also thought they communicated adequately with the
states. Two engineers, however, said they could improve their
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communication. One of these engineers said she sent the states
copies of any documents generated in her Federal cases, such as
NOVs and inspection reports. However, she did not take the
initiative to contact the state officials otherwise.
ENFORCEMENT
PROCESSES WERE
TIME CONSUMING
ARD's Enforcement
Process Was Slow
Issuing
Enforcement
Documents
The Regional and state enforcement processes needed to be
streamlined. Regional and state officials agreed the Region's
process was time consuming. The states' processes often ended in
delayed enforcement actions that did not meet the requirements in
the EPA Timely and Appropriate Guidance. Legal involvement,
the need to obtain and verify evidence, a lengthy resolution
process, and industry officials1 delay tactics, can all result in
untimely enforcement actions. Delays allow companies to
continue polluting the air. The ARD enforcement actions
especially need to be timely, because potential Federal action often
gives states leverage they need to negotiate an agreement with a
company. It is important for a company to know that, if it does not
settle with the state, it will be subject to Federal enforcement
action. Quick Federal action will help to reinforce this.
The ARD took a long time to issue enforcement documents for the
states, such as NOVs or information requests, and to resolve cases
the states deferred to them. Legal involvement and obtaining and
verifying evidence contributed to the ARD's slow process. State
officials said these delays resulted in less effective enforcement
actions.
The ARD was slow to issue enforcement documents, especially
when it needed to coordinate with the ORC. For example,
state personnel commented that when they asked the ARD to issue
enforcement documents for them, the ARD usually issued
information requests more promptly than NOVs. They said the
NOVs took longer because the ORC had to sign them. The ARD
issued information requests directly. ARD and ORC officials
agree they need to streamline the NOV process and have begun to
consider ways to improve it.
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Completing
Enforcement
Actions
State Enforcement
Processes Were
Not Timely
The ARD was also sometimes slow to complete enforcement
actions. ARD officials said this happened because they needed to
obtain and verify evidence. Indiana officials said the ARD usually
did not act timely on cases Indiana referred to them. Indiana
officials said, though, that they typically referred their more
complex or problem cases to the ARD. ARD officials agreed that
sometimes it was difficult for them to complete state actions. One
reason for this was that the ARD could not risk bringing a false or
incorrect enforcement action that could damage a company's
reputation. Therefore, they had to take their time, to be certain
they had gathered accurate evidence before proceeding.
States also were not always timely at resolving cases. The
processes of resolving a case was lengthy, and industry
officials also contributed to delays. Such delays prevented states
from meeting the EPA's requirements for timeliness and reduced
the effectiveness of the enforcement actions.
Lengthy
Resolution Process
Industry Delays
Indiana officials recognized they had difficulty resolving cases
timely. An Indiana case manager said the process of resolving a
case involved much discussion and could be lengthy, depending on
the level of cooperation received from the violator. For example,
in a case we reviewed, Indiana proposed an order with a company
in November 1993. Indiana did not issue the final order until
October 1994, almost a year later. Another Indiana case manager
said a previous large backlog of cases had delayed completing
some orders. The backlog had decreased, however, shortening the
current process.
Wisconsin also had difficulty completing cases within the required
time frames, as discussed in chapter 6. Because of the state's
timeliness problems, a Wisconsin official asked ARD officials to
take over any state case that exceeded the timeliness standard.
Industry officials created delays in enforcement actions by refusing
to cooperate with the enforcing agency. A company can also
create problems by not responding to information requests or
failing to take agreed upon actions. Waiting for companies to
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respond or take actions delays the enforcement process. During
our file reviews, we noted the following examples:
Illinois encountered several delays a company's owner
created, causing the enforcement action to remain open for
over five years. The owner originally refused to allow
Illinois inspectors to enter his plant. The inspectors
obtained an administrative search warrant and executed it
with police assistance. They found several violations,
including that the company had uncontrolled emissions.
The owner entered a motion to quash the evidence and
alleged violations of the Fourth Amendment to the U.S.
Constitution regarding unlawful searches and seizures. He
also attempted to get a temporary restraining order to
prevent Illinois from obtaining a search warrant. The
company had been out of compliance since December 1982
for some rules and since 1976 for others. Illinois officials
stated that compliance with the emission standards would
be easy to achieve, because the owner only needed to install
controls on some equipment. Instead, according to Illinois,
the owner had been uncooperative and exercised great use
of delay tactics.
It took almost three and a half years for Michigan and a
company to reach an agreement, resolving the company's
excess emissions. Michigan staff began asking, in May
1991, that the company submit a program showing how it
would meet final emission limits under a new Michigan
rule. In 1991, 1993, and 1994, company officials told
Michigan that they would establish a compliance program.
However, the company continued to exceed emission
limits. Finally, in October 1994, the company and
Michigan agreed on a formal consent order to bring the
company into compliance.
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LIMITED USE OF
INJUNCTIVE RELIEF
AND STIPULATED
PENALTIES
Injunctive Relief
The enforcement orders states issued to correct violations or assess
penalties were not always as strong as possible. For example,
Indiana officials did not usually include specific requirements in
their orders to prevent violations from recurring, known as
injunctive relief. Indiana and Illinois did not consistently include
stipulated penalties for noncompliance in their orders.10 The states
did not use these tools because of limited experience and, in some
instances, they did not see the need for them. Enforcement orders
that do not include injunctive relief and stipulated penalties,
however, may not be as effective at bringing companies back into
compliance.
We reviewed a sample of the enforcement orders states issued to
determine whether they included injunctive relief measures or
stipulated penalties. When the orders did not include these items,
we evaluated whether the cases needed them. For example, in
some cases, injunctive relief requirements were not needed because
the company had already come back into compliance.
Most state enforcement orders included injunctive relief
requirements. As table 3 shows, Michigan and Illinois usually did
include such requirements, when they were needed. In Indiana,
however, state officials did not include injunctive relief
requirements in three of the six orders where they were needed.
Because Wisconsin officials had not issued orders for any of the
cases we reviewed, we could not tel! if they normally included
injunctive relief requirements in their orders.
'"stipulated penalties can be automatically assessed against companies that do not comply with the order's
requirements.
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Table 3: Use of Injunctive Relief
in Sampled State Orders
Yes
No
N/A
Total
Michigan
7
1
2"
10
Illinois
3
0
3"
6
Indiana
-i
3
5*
11
Wisconsin
0
0
12b
12
* Injunctive relief was not needed, because the violation had been
corrected.
No orders were issued, therefore we could not review them for
injunctive relief.
Some Indiana enforcement staff members did not have the
experience to identify injunctive relief requirements to prevent
violations from recurring. The Indiana Office of Enforcement was
formed in 1992 with a small staff. Their focus initially was on
developing general policies and procedures. Recently, the Office
of Enforcement hired more staff, and Indiana officials stated they
now recognize the importance of injunctive relief requirements.
ARD officials recognized that Indiana did not use injunctive relief
enough and offered to help resolve this problem. In September
1995, the ARD wrote to Indiana officials identifying concerns over
specific settlements that did not include injunctive relief. The
letter identified a case where Indiana issued an order with a small
penalty and no injunctive relief requirements, although the
company had a history of visible emission problems. ARD
officials later found additional violations at the same company. In
April 1996, the ARD proposed having joint Indiana-EPA
inspections. One goal of the proposed inspections was to provide
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Indiana's Office of Enforcement staff with field experience, to help
in identifying injunctive relief requirements.
Stipulated Penalties
Although Michigan officials always included stipulated penalties
in their orders, other states did not, as shown in table 4. For
example, four of the six Illinois orders did not include stipulated
penalty provisions. In Indiana, five of the 11 orders we reviewed
included stipulated penalties, but the remaining six did not. As
mentioned before, Wisconsin did not issue orders for the cases we
reviewed, so we could not determine if they used stipulated
penalties in their orders.
Table 4: Use of Stipulated Penalties
in Sampled State Orders
Yes
No
N/A
Total
Michigan
10
0
0
10
Illinois
2
4
0
6
Indiana
5
6
0
11
Wisconsin
0
0
12s
12
* No orders were issued, so we could not review these
cases for stipulated penalties.
Illinois and Indiana officials did not always see the need for
stipulated penalties in their orders. Illinois' typical process for
settling enforcement actions was to issue an enforcement order
only after a company had come back into compliance and agreed to
a process for staying in compliance. Because of this, the state
officials did not always need to include stipulated penalties in
orders, since they believed the company would not violate the
order. An ARD official agreed that Illinois did not usually need
the stipulated penalties, but stated that the orders should still
include them. As with injunctive relief, Indiana enforcement staff
members did not always have the experience to recognize that
stipulated penalties were needed. The stipulated penalties could
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STATES MAY NEED
TO GIVE MORE
OVERSIGHT TO
LOCAL AGENCIES
Wayne County, Michigan
become very important if a company did not comply with the
order, allowing the state to address the situation quickly.
Michigan and Indiana officials expressed concern about potential
weaknesses in some local agency enforcement programs.11 It
appeared that the state agencies may not have overseen the local
agencies and, as a result, lacked information about the local
programs. Many local agencies were responsible for enforcement
programs in areas that did not meet the Act's air quality standards,
called nonattainment areas. If their programs have weaknesses, it
could have a serious impact on air quality in those areas.
Michigan had one local agency, in Wayne County (the Detroit
metropolitan area). Wayne County did not meet the Act's
standards for carbon monoxide. This pollutant can deprive the
blood of oxygen, especially affecting people with heart conditions.
As a local agency, Wayne County operated separately from
Michigan, although the county was under contract with the state
for air enforcement. The ARD also provided resources to Wayne
County, through an air grant.
Michigan officials were concerned about Wayne County's
program. For example, they said the Wayne County inspectors did
not always perform quality inspections or adequately document
them. Michigan officials also said that Wayne County did not
make a good effort to get violators back into compliance. As a
result, violations were likely to continue or recur. In the Michigan
officials' opinion, industry representatives influenced Wayne
County officials too strongly.
The state enforcement officials were also concerned that Wayne
County's air enforcement program was not as stringent as the rest
of the state. For example, Michigan staff members said General
Motors officials complained that they were treated unfairly,
compared to Ford Motor Company. Ford had most of its facilities
Because local agencies were not part of our scope, we did not verify the states' concerns.
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in Wayne County, while General Motors had most of its facilities
outside the county. General Motors officials said Wayne County
personnel allowed Ford to operate with violations that Michigan
officials required General Motors to fix. General Motors officials
also noted differences between their own facilities in Wayne
County and those outside the county.
Michigan and the ARD provided resources to Wayne County and
had some oversight responsibility for the county's program.
However, they had performed limited oversight in the past. This
seemed to be changing. In July 1996, Michigan was writing a
report from a Wayne County file audit that Michigan and ARD
officials performed in September 1995. Michigan had also
improved communication with Wayne County. The Wayne
County officials attended Michigan staff meetings and were
connected to Michigan's electronic mail system.
Indiana's Local Agencies Indiana enforcement officials also were concerned about local
agency enforcement activities, citing the local agencies as one of
their top three barriers to an effective enforcement program. The
state officials said they contributed to the problem because they
had provided little oversight or control of the local agencies. They
also said the local agency officials were sometimes too close to the
situations to take adequate enforcement actions.
Indiana delegated authority to several local agencies throughout the
state. As shown in figure 1, local agencies were responsible for
enforcement in four of the eight nonattainment locations in
Indiana. Indiana officials need to ensure these local agencies carry
out high quality enforcement programs to help improve the air
quality in the nonattainment areas.
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Figure 1:
Indiana Nonattainment Locations
-nr
Legend
B GivrfcJ hy Li»cai
Agency
2 - Covered by Siaie
Asency
CONCLUSION
RECOMMENDATIONS
AND
AGENCY ACTIONS
States faced many barriers that could have a negative affect on
their enforcement programs. Most were barriers internal to their
own programs, but there were some the ARD can help solve. We
recognize that not all barriers to enforcement can be solved.
Instead, ARD officials can help states mitigate the barriers as much
as possible. We believe that close coordination between the ARD
and the states can help overcome the barriers and improve the
effectiveness of state enforcement programs.
We recommended and the Regional Administrator, Region 5,
agreed that:
5-1. The ARD will discuss with state officials their information
needs and respond to those needs by December 30, 1996.
ARD officials will also (a) begin providing Significant
Violator Reports to states on a monthly basis, and (b) be
prepared to discuss Federal cases with state officials during
periodic conference calls
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5-2. ARD and ORC officials will commit to several actions to
streamline enforcement activities, such as using abbreviated
NOVs and a revised checklist for case preparation. The
streamlining will continue through fiscal year 1997.
5-3. ARD officials will discuss with state officials the timeliness
of enforcement activities during the Environmental
Performance Partnership Agreement discussions, to be
concluded by January 1, 1997.
5-4. ARD officials will discuss with state officials the need for
stipulated penalties and injunctive relief during the
Environmental Performance Partnership Agreement
discussions, to be concluded by January 1, 1997.
5-5. ARD will offer states assistance for training and oversight
of local agencies and express its willingness to act on
referred cases by September 30, 1996.
OIG EVALUATION
Region 5's actions, when completed, will address our findings and
recommendations.
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CHAPTER 6
ARD Enforcement Data Were
Not Complete or Consistent
The ARD enforcement data in AFS were not complete or internally
consistent, and contained duplicate records. There were multiple
causes for the data problems, including that AFS had some design
flaws and the ARD and the states tracked enforcement data
differently. As a result, ARD management and the states did not
use AFS as their own information system and, thus, had less
incentive to maintain the data.
Several issues combined to create data problems in AFS. First,
AFS was designed as part of a mainframe system that state
personnel found difficult to use. Second, maintaining the data in
AFS was resource intensive and not all states provided the data
electronically or in a timely manner. Third, the ARD and the states
applied different data definitions when tracking the enforcement
data, so the AFS data were inconsistent. Finally, AFS did not track
all the data the ARD and state officials needed, so they developed
their own systems.
ARD management communicated their concerns about AFS to
Headquarters. The ARD and Headquarters need to resolve
concerns about the system to ensure data quality prior to the
planned public release of AFS data on the Internet. Also, EPA
needs quality data for program decisions and the current method of
obtaining that data through AFS is not effective.
BACKGROUND
Headquarters designed the AIRS database in stages during the
1980s to be a national repository for air pollution data. AFS was
an AIRS enhancement, completed in 1990. The system developers
designed AFS to maintain data for emissions, compliance,
enforcement, and permits. AFS separated this information
between two parts, emission and compliance. The compliance part
included enforcement data, the subject of this chapter.
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The Office of Air and Radiation established national minimum
data requirements for AFS and issued final requirements in
December 1993. These data requirements applied to all regions
and states. OECA also required APS data from the regions
through the Memorandum of Agreement with each region.
Regional personnel were responsible for ensuring that AFS data
requirements were met for both state and regional enforcement
cases.
Several EPA Headquarters offices used AFS enforcement data.
For example, OECA used state and regional AFS data extensively
for accountability, targeting, sector analyses, and external reporting
purposes. The Headquarters' Office of Information Resources
Management also planned to make AFS data available to the
public on the Internet.
Headquarters intended for the states to report AFS data to EPA and
to use the data internally. However, AFS was part of a mainframe
system that was difficult for state personnel to use. Most states
found it easier and more meaningful to create and use their own
systems. As a result, according to a GAO report, ". . . most heavy
emission states now use their own systems because these systems
are more efficient and easier to use."12
Our work in the ARD was consistent with GAO's earlier findings.
The ARD and Region 5 states did not use the compliance portion
of AFS as their own enforcement tracking system. Illinois,
Indiana, and Minnesota had upload programs that converted and
entered state system data to AFS. Michigan, Ohio, and Wisconsin
did not have upload programs to transfer data to AFS electronically
and submitted their data on paper to the ARD. ARD staff members
then entered data to AFS from the paper reports.
12EPA Data &dthering Efforts Would Have Imposed a Burden on States. GAO/AIMD-95-160. August 1995.
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DATA WERE
NOT COMPLETE
DATA
DEFINITIONS VARIED
ARD officials told us state AFS data were incomplete for Ohio It
also appeared that some Indiana enforcement actions were missing.
For Ohio, ARD personnel stopped entering data to AFS because it
was too resource intensive. Ohio had five district offices and 10
local agencies throughout the state. These offices and agencies did
not have direct links to AFS or compatible systems that staff
members could upload to AFS. As a result, staff members in each
office or agency prepared paper reports and sent these reports to
the ARD. It took an ARD employee about three weeks each
quarter to input all of the Ohio AFS data. Because this was time
consuming, in February 1995, ARD management decided the
employee should stop inputting the Ohio data. In July 1996,
however, at OECA's request, the ARD agreed to input Ohio's
missing data by the end of fiscal year 1996.
Indiana may have also had incomplete AFS data. We compared
two reports for the same time period and found five records on the
Indiana report that were not on AFS. Indiana staff members
created the report from Indiana's Enforcement Tracking System
and ARD personnel created a report from AFS, both listing cases
closed between October 1993 and June 1995. Indiana staff
members could not identify whether the five enforcement actions
should have been on AFS. After reviewing the Indiana report, an
ARD staff member thought Indiana should have reported three of
the cases but did not have enough information to evaluate the other
two.
Indiana and Michigan applied different definitions than the ARD
as to when they considered a case completed. This resulted in
timing differences between state and ARD enforcement reports.
Also, one ARD section used a different definition than other ARD
sections of whether the ARD or state had the lead on an
enforcement action. This resulted in inconsistent data in AFS,
when compared to other Region 5 states.
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Date Enforcement
Action Completed
Federal and State Lead
Twenty-three cases (58 percent of 40 total cases) on the Indiana
report were not on the AFS report, due to different definitions.
Indiana enforcement staff members considered a case completed
when they issued a final order and collected the penalty. ARD
staff members used the EPA Timely and Appropriate Guidance
definition that considered a case completed when the company
returned to compliance. The ARD completed date was usually
later than the date of the final order or penalty. These cases were
in AFS, but the ARD did not consider them completed yet.
Therefore, they did not appear on the AFS report of completed
cases. Indiana staff members stopped tracking cases in their
database after they considered them complete.
At Michigan, we identified eight cases (26 percent of 31 total
cases) that had timing differences. These differences also occurred
because, for AFS reporting purposes, Michigan staff members
considered a case completed when they entered the final order.
However, Michigan officials said that their district office staff
members continued monitoring the company to ensure that the
company complied with the provisions of the final order and
remained in compliance.
Some enforcement cases on AFS showed the ARD as having the
case lead, when the work on the case instead remained at the state
level. This occurred because one of three ARD sections used an
AFS data field differently than other ARD sections. At the time of
our review, the Michigan/Wisconsin section had begun to apply
the EPA Timely and Appropriate Guidance 150 day limit to state
enforcement actions, despite specific case circumstances.13 This
resulted in several Wisconsin cases shown as Federal cases, when
the state staff actually finished some of them.
A Wisconsin official asked ARD officials to take over any state
case that was 150 days old. According to ARD management, the
13The guidance requires that the company will either be in compliance or on a legally-enforceable and
expeditious administrative or judicial order, or be subject to a referral to the (state) attorney general or (Federal)
Department of Justice. The region may take over the case when it is 90 days old or decide to continue to defer to the state
action if it appears the state will soon resolve the case. By day 150, the source shall either be in compliance or addressed.
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Wisconsin official hoped this would force state staff members to
finish cases faster. At the time of our file review, ARD staff
members usually let Wisconsin staff members finish the cases, but
showed the case as a Federal lead in AFS. ARD management said
they did this because, in the future, they planned to take the cases
over, as asked, and not let the state finish them.
Cases shown in AFS as Federal cases, when they were really state
cases, resulted in inaccurate AFS data for Wisconsin. As table 5
shows, there were 26 Wisconsin cases listed on AFS as switching
from state to Federal lead. The state finished all five sample cases
we reviewed. These five cases listed as Federal lead for Wisconsin
did not reflect who was really handling the cases. Also, 12 of the
26 cases switched lead exactly on day 150. Other Region 5 states
did not have any cases that switched exactly on day 150. This
suggests that the ARD's use of a different definition for Wisconsin
than for other states distorts the Wisconsin data.
Table 5: AFS Cases by State Completed
Between October 1993 and June 1995
State
Illinois
Indiana
Michigan
Minnesota
Ohio
Wisconsin
Total
Number of Cases
Total for State--
State or Federal
Lead
59
29
49
30
18
76
261
Lead Changed
from State to
Federal
7
2
7
1
0
26
43
Lead Changed
on Day 150
0
0
0
0
0
12
12
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POTENTIAL EXISTED
FOR DUPLICATE
RECORDS
REASONS ARD AND
STATES DID NOT
USE AFS
Indiana data support personnel did not update AFS timely and this
created a potential for duplicate records. Indiana enforcement staff
entered data to their own enforcement tracking system. Monthly,
an administrative assistant prepared a report of changes to the
database and submitted them for entry into the system Indiana
personnel uploaded to AFS. After staff entered the data to the
Inspection Targeting System, the uploads transferred the data to
AFS. However, Indiana data support personnel did not give this
task priority. As a result, the uploads to AFS were sporadic and
untimely.
The sporadic and untimely uploads created a potential for duplicate
records in AFS. The ARD received copies of Indiana enforcement
actions. ARD staff members checked for the enforcement actions
on AFS and, if they did not find them, they updated AFS with the
new information. However, when the Indiana upload occurred, it
created duplicate records for the data entered at the ARD. ARD
staff members removed the duplicate records, but this was an
inefficient use of their resources.
OECA recognized that many regions and states did not use AFS as
their own tracking systems and that this created problems for AFS
data. OECA officials noted in a Region 4 evaluation report:
Reliance on Regionally developed tracking systems,
in lieu of the major national databases, appears to be
taking away the incentive for the Region to address
data quality problems with national systems.
ARD officials had limited incentives to submit quality data to
AFS. Not only did they not use it as their own system, they were
not sure how OECA made conclusions using AFS data.
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ARD and States
Developed And Used
Their Own Systems
ARD Questioned
Usefulness of
Nationwide Data
The ARD and the states developed and used their own information
systems, because AFS did not meet their needs. The ARD
database provided information that Headquarters' officials did not
require for AFS and that ARD staff did not want in a public
database, such as potential violations. The ARD database included
all enforcement actions that ARD staff members were responsible
for: stationary sources (tracked in AFS), chlorofluorocarbon
(tracked in a separate database), and asbestos (also tracked in a
separate database). It was also beneficial to ARD staff members to
have a single database to track all ARD enforcement activity.
For reasons similar to those at the ARD, state officials also
developed and used their own systems. Michigan officials used
their Letter of Violation Log. Indiana officials had two databases
they used instead of AFS, one for enforcement data and one for
inspection data.
ARD officials questioned the usefulness of AFS data nationwide.
Although we only reviewed AFS data for two Region 5 states,
Indiana and Michigan, ARD officials stated that AFS data for the
other Region 5 states were also flawed. They also said that other
regions did not use AFS or did not enter all of their required data.
Because ARD officials believed the AFS data were incomplete
nationwide, it was difficult for them to see the benefit of entering
data to AFS. In the Region 5 Fiscal Year 1995 Accomplishments
Report, written in response to the Memorandum of Agreement
with OECA, ARD management said:
First,. .. the States and Region 5 have not seen this
[AFS and National Asbestos Registry] data put to
meaningful use since the advent of these systems. . .
Secondly, the States and Region 5 are concerned
that the nature of the data in the databases will
result in flawed program decisions.
To make AFS data useful, an ARD official believed that
Headquarters' officials should eliminate or at least redefine AFS
data requirements. For example, Headquarters' officials needed to
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CONCLUSION
RECOMMENDATIONS
AND
AGENCY ACTIONS
start by defining what data the public needed and then require
regions and states to submit only that data.
AFS data for the ARD were not complete or consistent and
contained duplicate records. We believe these data problems may
be a reflection of design flaws and not having consistent data
definitions. Audit work is ongoing in other EPA regions that may
confirm this. We plan to address this issue further in a national
report, following completion of the other OIG assignments. In the
meantime, we encourage ARD officials to discuss their AFS
concerns with OECA officials. They can begin the process of
defining what air enforcement data EPA really needs and
developing new approaches to obtaining and maintaining such
data. Until AFS data requirements are changed, the ARD and the
states need to correct problems with their data by using the same
data definitions. The ARD also needs to encourage states to
submit their data electronically and timely. Solving data quality
concerns in AFS is particularly important, since EPA plans to
make the data available to the public.
We recommended and the Regional Administrator, Region 5,
agreed that:
6-1. By January 1, 1997, Region 5 will review the Timely and
Appropriate Guidance with its states.
6-2. During the discussions for the state performance
agreements, scheduled for completion by January 1, 1997,
Region 5 will encourage states to develop, update, and
maintain electronic means of transmitting data to the AFS
system.
6-3. ARD staff will now actively work on significant violators
designated as Federal lead, thereby achieving definitional
consistency.
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6-4. Region 5 staff will reiterate its concerns to Headquarters
officials at the AFS Workshop in September 1996.
OIG EVALUATION
Region 5's actions, when completed, will address our findings and
recommendations.
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Exhibit 1
Page 1 of 2
SAMPLE SELECTION METHODOLOGY
AUDIT
As part of our audit of Region 5's air enforcement and compliance assistance program, we
reviewed case files at the ARD, Indiana, and Michigan. Because these were not statistical
samples, the results cannot be projected to all cases. See table 6 for a summary of the sample
selection.
Table 6: Case File Reviews
ARD
Indiana
Michigan
Universe
36
40
31
Sample Size
10
11
10
Percentage
28%
28%
33%
The Air Enforcement and Compliance Assurance Branch Data Manager provided an AFS Quick
Look Report of Federal consent agreements and consent orders and decrees issued between
October 1, 1993, and June 30, 1995. The Indiana and Michigan reports covered the same time
frame. The Indiana report listed the enforcement cases closed and dismissed. Michigan staff
provided copies of quarterly memos of closed significant violator cases.
We identified the sample universes by numbering the cases listed on the ARD, Indiana, and
Michigan reports. The universes were 36, 40, and 31 cases, respectively. Using the EZQuant
random number generator, we produced random numbers for each universe. We reviewed cases
corresponding to the random numbers.
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SURVEY
Prior to auditing Region 5's air enforcement and compliance assistance program, we conducted a
survey to obtain general working information on the program. We used the survey results to
determine what further audit work we needed to do.
As part of the survey, we reviewed judgmental samples of case files at Illinois and Wisconsin.
Because these were not statistical samples, the results cannot be projected to all cases. See table
7 for a summary of the sample selection. In selecting the samples, we focused on significant
violator cases because these cases were Federally enforceable.
Table 7: Case File Reviews
Illinois
Wisconsin
Universe
16
14014
Sample Size
6
12
Percentage
38%
9%
Illinois
Illinois officials provided a list of all enforcement orders entered against significant violators in
calendar year 1994. The Illinois universe of significant violators was 16 cases. We reviewed 6
cases, or 38% of the universe.
Wisconsin
Wisconsin officials provided a list of all enforcement actions closed out in calendar year 1994 for
the two district offices we visited, the Madison Southern and Milwaukee Southeastern Districts.
The sample universe of cases was 140. We reviewed 12 cases, or 9% of the universe. Of the 12,
nine cases were completed.
14Wisconsin's universe represented the Southern and Southeastern district offices' cases for calendar year
1994. The universe included 59 cases that Wisconsin officials did not close out for several years, although the
companies came back into compliance long before close out. Therefore, the universe was larger than the actual
number of cases resolved in 1994.
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SUMMARY OF PENALTIES FOR SAMPLE UNIVERSES
ARD, Michigan, Indiana, and Illinois enforcement officials assessed penalties in nearly all of the
cases in their respective universes of case files. Most penalties were below $50,000. The
Wisconsin reports for enforcement cases did not include penalty data. Therefore, we were unable
to determine the range of penalties for the Wisconsin universe.
ARD
The ARD universe was 36 cases. The penalties in the ARD universe ranged from $0 to
$2,703,000. The ARD assessed penalties in 32 of the 36 cases.
Table 8: Range of Penalties for the ARD Universe
Penalty Range
$0 - $50,000
$50,001 -$100,000
Over $100,000
Number of Cases
28
3
5
Michigan
The Michigan universe was 31 cases. The penalties in the Michigan universe ranged from $0 to
$532,000. Michigan officials assessed penalties in 28 of the 31 cases.
Table 9: Range of Penalties for Michigan Universe
Penalty Range
$0 - $50,000
$50,001 -$100,000
Over $100,000
Number of Cases
23
4
4
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Indiana
The Indiana universe was 40 cases. The penalties in the Indiana universe ranged from $0 to
$572,000. Indiana officials assessed penalties in 39 of the 40 cases.
Table 10: Range of Penalties for Indiana Universe
Penalty Range
$0 - $50,000
$50,001 -$100,000
Over $100, 000
Number of Cases
34
3
3
Illinois
The Illinois universe was 16 cases. The penalties in the Illinois universe ranged from $0 to
$1,300,000. Illinois officials assessed penalties in 15 of the 16 cases.
Table 11: Range of Penalties for Dlinois Universe
Penalty Range
$0 - $50,000
$50,001 -$100,000
Over $100,000
Number of Cases
14
1
1
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OIG AND GAO REPORTS
OIG
Review of Region S's Stationary Source of Air Pollution Compliance and Enforcement Program
(EPA-IGE1K67-05-0449-80743, March 11, 1988).
Capping Report on the Computation, Negotiation, Mitigation, and Assessment of Penalties
Under EPA Programs (EPA-1G E1G8E9-05-OQ87-910048S. September 27, 1989).
Follow-up Review on EPA's Mitigation of Penalties (EPA-IG E1GMG4-05-6009-4400107,
September 15, 1994).
GAO
Air Pollution: Improvements Needed in Detecting and Preventing Violations (GAO/RCED-90-
155, September 27, 1990).
Environmental Enforcement: Penalties May Not Recover Economic Benefits Gained by
₯iolatQK(GAO/RCED-91-166, June 17, 1991).
Air Pollution: EPA Data Gathering Efforts Would Have Imposed a Burden on States
(GAO/AIMD-95-160, August 7, 1995).
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STATE COMPLIANCE ASSISTANCE ACTIVITIES
Within Region 5, two of the four states we visited, Indiana and Illinois, had broad reaching
programs to small businesses. The Indiana state legislature and an Illinois Governor's task force
authorized the states to pursue these programs. The programs were extensions of small business
assistance programs already established under the Act. The small business programs maintained
contact with local chambers of commerce and small business development centers to help
distribute information to the regulated community. These compliance assistance efforts took
those existing small business assistance programs one step further. Not only did the state
programs provide information, they now provided businesses the opportunity to come forward
and learn how to bring their operations into compliance with environmental regulations.
INDIANA FIVE STAR
RECOGNITION PROGRAM
Indiana developed a compliance assistance program for dry cleaners. The program started with a
grant to the Indiana Dry Cleaning and Laundry Association. The association developed a manual
that included all regulations (EPA, Occupational Safety and Health Administration, and
Department of Transportation) affecting dry cleaners. After the dry cleaner industry was aware
of the regulations, through distribution of the manual, Indiana staff members encouraged owners
and operators to apply for certification under the Indiana Five Star Recognition Program.
The program had five levels, ranging from five stars, the most environmentally friendly dry
cleaning process, to one star programs that met and exceeded the minimum applicable
regulations. To qualify for five stars, a dry cleaner had to do the majority of their cleaning using
wet processes. These processes do not use perchloroethylene (perc), a toxic chemical subject to
National Emission Standards for Hazardous Air Pollutants. New technology reduces dry cleaner
reliance on perc. However, many dry cleaners are still using older equipment that uses perc.
Indiana staff hoped that dry cleaner owners and operators would see the Five Star Program as an
opportunity to market themselves as environmentally friendly to their customers. When the five
star designation is awarded, Indiana issues a press release and holds a press conference. The
Indiana Department of Environmental Management Commissioner or Deputy Commissioner also
awards a plaque. Dry cleaners can use these as marketing tools.
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Indiana's Five Star Recognition Program created competition in Evansville, Indiana, over which
dry cleaner was the most environmentally friendly. There were two major dry cleaners in
Evansville. Both applied for and were awarded the five star designation. The two five star dry
cleaners competed over where the press conferences would be and whose would be first. The
local news media attended the press conferences, along with the Mayor.
Indiana officials believed their program was a success. As of March 1996, Indiana had awarded
114 star designations, representing about 14 percent of Indiana's 800 dry cleaners.15 Dry cleaner
associations from four other states were considering obtaining the Indiana dry cleaner manual.
About 15 additional states were considering adopting an incentive program similar to Indiana's
program.
Indiana officials have not asked Region 5 officials to take a position on the Indiana Five Star
Program nor have Region 5 officials evaluated it. Therefore, they do not have a position on it.
ILLINOIS CLEAN BREAK
AMNESTY PROGRAM
Illinois piloted a program offering amnesty to small businesses that identified violations and
entered a compliance agreement.16 The Governor of Illinois created a Small Business
Environmental Task Force. The task force reported that the small business community was
afraid of not complying with environmental regulations because they did not know which applied
to their businesses. As a result, the Illinois Environmental Protection Agency and others (such as
the Illinois Department of Commerce and Community Affairs and the Rockford Area Chamber
of Commerce) developed a pilot amnesty program. The pilot program was limited to small
businesses located in two counties. It started with educational outreach and then offered
amnesty, if the participating company entered a compliance agreement.
The program promised anonymity to the company until they signed a compliance agreement.
Illinois staff members hoped that anonymity and amnesty would encourage participation and
15The star designations were: 28 Five Star, 32 Four Star, 52 Three Star, 1 Two Star, and I One Star.
l6The amnesty meant that Illinois would not assess or collect any penalties for the violations brought forth, nor
would they refer the violator to enforcement officials.
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trust of Illinois environmental officials. One hundred and five companies expressed interest in
participating. In the end, 42 of the eligible companies decided to enter compliance agreements.
Compliance agreements included: (1) the violations, (2) the steps and a time line to achieve
compliance, and (3) an Illinois commitment not to refer the client for enforcement action
(amnesty),
Illinois personnel estimated that, had they referred the amnesty violators for enforcement actions,
they could have assessed $482,000 in penalties. Illinois could have viewed the penalties as a
missed opportunity. However, according to Illinois officials, they would have had to identify all
42 companies and the violations through the course of their regular work. It is not likely that
they would have found all of the violators (all small businesses) and all of the violations without
the amnesty program.
Illinois staff members evaluated the pilot program, interviewed participants, and decided the
program was a success. As a result, Illinois offered the program throughout the state for the
printing industry and auto body and repair shops.
As of July 1996, OECA officials were reviewing Region 5's proposed position on the Illinois
Clean Break amnesty program. Region 5 officials generally supported the program. However,
they were concerned that the program may not have a mechanism in place to follow-up with
companies that did not take advantage of the state offered amnesty and compliance assistance.
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EXAMPLE 1: REGION 5 PRESS RELEASE
&EPA
United Slates
Environmental Protection
Agency
Region 5
77 West Jackson Blw)
Chicago. Illinois 60604
Illinois, Indiana,
Michigan. Minnesota.
Ohio, Wisconsin
Environmental
NEWS RELEASE
Technical Contact: Emmett Keegan
(312) 886-0678
Legal Contact: Jeffrey Cox
(312) 353-3112
Media Contact: Anne Rowan
(312) 886-7875
For Immediate Release: March 24, 1994
No. 94-MO51
EPA, 2AST CHICAGO REACH AGREEMENT ON INCINERATOR VIOLATIONS
U.S. Environmental Protection Agency (EPA) Region 5 has
recently signed a consent agreement and consent order vith the City
of East Chicago, IN, to resolve Clean Air Act violations at the
East Chicago Municipal Incinerator.
The order requires the permanent shutdown of the incinerator
to resolve EPA's two outstanding notices of violation. (The
facility was closed on November 11, 1993.)
EPA cited the facility in February 1992 for violating the
emission limit for opacity. In August 1993, EPA cited the city for
additional opacity violations and for failing to respond in a
timely, complete manner to an EPA request for information.
ftt
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EXAMPLE 2: REGION 5 PRESS RELEASE
UMMSSUM
Enwonmenul Protection
Agency
77 WttJ i
lto>o*«08
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Compliance Assistance Program
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Page 3 of3
- 2 -
EPA can issue an administrative penalty order or bring a
civil action for violation* of the Clean Air Act, LTV has
requested a meeting with EPA to discuss the allegations.
Participate matter can irritate the human respiratory system.
The elderly, children, and people with existing respiratory and
cardiovascular ailments are most at risk. In addition,
particulate matter can contribute to urban haze and reduce
visibility.
* I *
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TOP BARRIERS TO EFFECTIVE AIR ENFORCEMENT
As part of our audit, we discussed barriers that prevented the states and the ARD from having
effective air enforcement programs During our survey, we met with Illinois and Wisconsin air
enforcement officials. Based on this work, we selected identifying barriers to effective
enforcement as one of our audit objectives. During our audit fieldwork, we asked Indiana and
Michigan officials about their barriers. We performed similar work in the ARD, including
surveying a sample of ARD engineers Table 12 shows the top three barriers to effective
enforcement, as the ARD and the states ranked them.
Table 12: Top Three Barriers
To Effective Air Enforcement Programs
Barrier
1
2
3
ARD
Detecting Violations
Slow Enforcement Process
Political Climate
Indiana
Unsupported Enforcement Actions
Weak State Rules
Local Agencies
Michigan
Limited Resources
Untimely Permits
Political Climate
ARD BARRIERS
In January 1996, an ARD official identified the following three barriers to air enforcement.
1. Detecting Violations
Violators first must be found for enforcement officials to bring enforcement actions and deter the
regulated community. The companies must believe that the ARD or the state will find them if
they violate the law. According to an ARD official, the best way to find violations is through
continuous emission monitoring. The monitoring involves having machines constantly measure
the pollutants a company releases. The Act required enhanced monitoring using continuous
emission monitors, but industry pressure has been eroding the effectiveness of the requirement.
For example, the ARD official said only one half of all Region 5 refinery emission points had
continuous emission monitors The ARD or the states must inspect the remaining points to find
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violations. Continuous emission monitors put the burden of identifying the violation on the
company. Without the monitors, the burden is on EPA and the states to find the violations.
2. Slow Enforcement Process
See chapter 5.
3. Political Climate
An ARD official also said the current national political climate affected the air enforcement
program. He thought the regulated community recognized that they could exert influence over
regulations and the enforcement process. Representatives of many companies called or wrote
their Congressional representatives after the EPA issued an enforcement action against them.
Doing this delays the process and takes the negotiations to a higher level. For example, the ARD
had brought an enforcement action against a state university. Shortly after that, a United States
Senator and congressional staff met with the EPA Administrator. As a result, negotiations were
elevated to a higher level, reducing the ARD's control and influence over the negotiations.
Some ARD engineers agreed the political climate was a barrier. They said companies believed
they were better off meeting with Congress or EPA Headquarters, rather than dealing with the
ARD enforcement staff.
INDIANA BARRIERS
In September 1995, Indiana's Acting Director for the Office of Enforcement and Acting Chief for
the Air Enforcement Section identified barriers.
1. Unsupported Enforcement Actions
Indiana officials did not feel they had strong support for enforcement actions. This included the
state Attorney General's Office and the ARD not acting on cases.17 It also included a lack of state
support for commissioner's orders.
!7According to Indiana officials, the ARD did not usually act timely on cases Indiana referred to them. See
chapter 5.
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The Indiana enforcement officials said they did not get adequate support from the state Attorney
General's Office. However, they were hopeful this would improve because the Attorney
General's Office had a new Environmental Branch director. As of February 1996, the
relationship had begun to improve. The attorneys from both the Attorney General's Office and
Indiana began having monthly coordination meetings. Because Indiana officials had not
received cooperation from the Attorney General's Office in the past, they seldom referred cases
to them. Instead, Indiana officials tried to settle cases administratively.
Finally, Indiana officials said the Administrative Law Judges and the Indiana Air Pollution
Control Board rarely sided with Indiana when a company disputed a commissioner's order. This
made Indiana try to settle cases administratively, thus avoiding the Administrative Law Judge
and Pollution Control Board's involvement.
2. Weak State Rules
The Indiana officials said the state's rules were ambiguous, making them difficult to enforce.
They believed poorly written rules were a result of having rule writers that did not obtain input
from the technical staff. They also acknowledged that it was difficult to write rules to fit all
situations and scenarios. To help solve this problem, Indiana began getting industry
representatives involved in the rule writing process.
3. Local Agencies
The Indiana officials said they needed to provide better oversight of the local agencies. They
also said that the ARD could help them, particularly in training the local inspectors. See chapter
5.
MICHIGAN BARRIERS
Michigan's Compliance and Enforcement Section Supervisor and Enforcement Unit Chief
identified the following three barriers, in September 1995
1. Limited Resources
Michigan faced limited compliance resources. Michigan officials said that there were not
enough resources available to identify and take enforcement actions on all violations. The
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officials noted that, although their resources for compliance and enforcement had increased in
recent years, the increases were for the permitting program, not inspections.
2. Untimely Permits
Michigan officials said the state's permit process was too time consuming and a backlog existed.
This delayed enforcement actions when a permit needed to be issued to resolve a violation.
During our file reviews, we found the following examples:
A company installed and operated a spray booth without a permit. Michigan identified
the violation in April 1983. However, Michigan personnel did not act until May 1990.
At that point, they began a dialogue with the company that lasted five years. The original
permit application the company submitted in July 1990 was not complete. However, it
was not until January 1992 that Michigan permitting staff wrote to company
representatives asking for more information. The company representatives requested a
time extension and failed to respond to requests for information. This continued until
Michigan enforcement personnel threatened EPA involvement. That persuaded the
company representatives to settle quickly. The Michigan permitting staff finally issued
the permit in September 1994. In March 1995, the enforcement action was completed.
Michigan sent a letter of violation to a company, in August 1992, stating that the
company had installed and operated paint spray booths without a permit. In November
1992, the company submitted a permit application. Part way through the permitting
process, in April 1993, the company decided to change the activities that it needed the
permit for. As a result, the permitting staff put the permit on hold until the company
made its changes, in January 1994. Michigan permitting staff finally issued the permit in
April 1995, almost three years after the state notified the company it needed the permit.
Michigan enforcement officials then resolved the case the week after the permit was
issued.
3. Political Climate
The political climate affected the enforcement program as a whole and specific cases at
Michigan. For example, as discussed in chapter 4, Michigan personnel did not publicize every
enforcement action because they did not want their enforcement program to appear heavy
handed. Publicizing cases for minor violations, according to Michigan officials, ". .. could lead
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to additional scrutiny of the program, interference by legislators or others in specific settlement
negotiations, or changes in the law to reduce penalty amounts or other enforcement authorities."
Direct political involvement made it difficult for Michigan officials to settle some cases. For
example, in an enforcement action against one company, a copper mine located in the upper
peninsula of Michigan, local politicians became involved. The company was exceeding its
permitted emission limits. In 1992, the EPA identified this company as the top polluter of toxics
in the state. According to a newspaper article, local politicians tried to convince the Michigan
Attorney General's Office not to enter a lawsuit against the company. The local politicians also
urged individuals to write the Attorney General and their state legislators protesting the lawsuit.
They were very concerned that the lawsuit would cause the mine to close, affecting more than
1,000 employees. This made it difficult for Michigan staff to pursue the enforcement action.
Eventually, the ARD and others became involved and reduced the case's political effect on
Michigan.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGIONS
77 WEST JACKSON BOULEVARD
CHICAGO. B. 80604-3SM
REPLY TO TK ATTENTION OF:
MEMORANDUM
DATE: HJS 22 1S86*
SUBJECT: Draft Audit Report No. ElGAF5-05-0045-xxxxxx
Region 5's Air Enforcement and Compliance
Assistance Program
_
FROM: Valdas V. Adamkus
Regional Administrator
TO: Anthony C. Carrollo
Divisional Inspector General for Audits
Northern Division
Thank you for the opportunity to review and comment on Draft
Audit Report Ho. ElGAF5-05-0045-xxxxxx, Region 5's Air
Enforcement and Compliance Assistance Program. The attached
represents a coordinated response.
-y^-^Valdas V. Adamkus
Attachment
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The following represents a coordinated response to the draft audit report entitled
"Region S's Air Enforcement and Compliance Assistance Program", Report No. E1GAF5-05-
0045. This response has been coordinated with Region S's Office of Public Affairs, Office of
Regional Counsel, and Office of Enforcement and Compliance Assurance, as appropriate. To the
extent that the above entities have submitted comments in response to earlier drafts, those
comments will not be repeated here. Following is our specific response to Chapters 2-6 and their
associated recommendations.
Chapter 2
Generally, we concur with the thoughts expressed in this chapter and the recommendations.
Specifically, in response to Recommendation 1, Region 5's Enforcement and Compliance
Assurance Team commits to have in place, by September 1,1996, a Regional Compliance
Assistance Strategy which will put in place elements of infrastructure which will routinize
assistance provided in conjunction with new regulations and actively market policies encouraging
voluntary compliance. Additionally, the strategy will contain a specific plan for compliance
assistance projects which will be conducted during FY '97. These projects will provide a clear
near-term direction for the region's activities and include associated performance measures.
Based on the success of these initial projects, annual development of compliance assistance
projects will occur. In response to Recommendations 2 and 3, the Enforcement and Compliance
Assurance Team commits to provide training to affected regional staff generally on the role of
compliance assistance in the region's activities and specifically on the Regional Compliance
Assistance Strategy. The Air and Radiation Division's affected management and staff will be full
participants in that training. This training will be conducted by January 1,1997.
Chapter 3
Generally, we concur with the main themes and the recommendations expressed in this chapter.
However, we must point out that although the concept of recovering the economic benefit is
solid, there may be a number of valid methods for calculating this value. EPA's Civil Penalty
Policy, itself, can yield a number of vastly different results based on judgements made concerning
a similar set of facts. Specifically, in response to Recommendation 1, the Air and Radiation
Division commits to include a discussion of recovery of economic benefit in state enforcement
agreement/MOA talks. We will also work through Region S's Office of Enforcement and
Compliance Assurance to seek inclusion of this element in EnPPA discussions. Many of these
discussions have begun as of this writing. Our target date for concluding these discussions is
January 1,1997. With respect to Recommendation 2, it is not clear at this point whether the
states of Illinois and Indiana wish to have 114 authority delegated for the purpose of being able to
secure information to enable economic benefit penalty determinations. Should these Slates decide
that they would like to take this delegation, the Air and Radiation Division commits to processing
their request within 60 days. For the time being, the Air and Radiation Division will continue to
offer and provide assistance relating to penalty calculations to all Region S states in support of
their enforcement cases.
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Chapter 4
We concur with the main theme of Chapter 4 and also with the recommendations. Specifically for
Recommendation 1, in addition to the streamlining implemented during fiscal year 1996, in the
Office of Public Affairs, beginning in Fiscal year 1996, the Air and Radiation Division limited
formal sign-off on draft press releases to the section chief level. Additionally, the Office of Public
affairs has taken a more active role in the initial drafting of press releases, for the purpose of
minimizing rewrites.
With respect to Recommendation 2, the Office of Public Affairs is currently developing a
Regional press release policy, which will be broadly distributed in the Regional office. A major
section of this policy will include guidance, developed jointly between the Office of Public Affairs
and the Regional Enforcement and Compliance Team, on which enforcement actions to publicize.
Having such a policy in place should result in more consistent issuance of press releases on
appropriate enforcement cases. The policy also will include guidance on deciding when an action
is newsworthy, guidelines on timeliness, and guidance on the inclusion of environmental impact.
The Regional press release policy will be completed and distributed in the first quarter of FY
1997. Concerning Recommendation 3, the Air and Radiation Division commits to discuss
publicizing press releases during the fiscal year 1997 cycle of state enforcement
agreernents/MOAs and also to raise the issue to the Region's Office of Enforcement and
Compliance Assurance for possible inclusion in EnPPA discussions. It should be noted that past
practices in the states, as well as deep philosophical differences on the desirability of publicizing
enforcement activities make uniformity here unlikely.
Chapter 5
We concur with the general themes of this chapter and with the recommendations. Concerning
Recommendation 1, the Air and Radiation Division will commit to the following actions:
By October 1, 1996, we will contact each of our states to determine, specifically, what
information they feel they are not receiving in a timely fashion. We will complete any
warranted changes resulting from those calls no later than December 30, 1996.
We will provide the Significant Violators Report to states on a monthly basis. This report
contains information on cases at all stages.
We will conduct conference calls every 4-6 weeks with our states and will be prepared to
discuss Federal lead cases at the call or will initiate a follow-up call to provide
supplemental information.
For Recommendation 2, the Air and Radiation Division, in conjunction with the Office of
Regional Counsel will continue the evaluation of the enforcement process during fiscal year
1997, with the intent of implementing measures which will streamline our activities. Specifically,
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we will commit to the following:
We will initiate discussions with the Department of Justice for the purpose of exploring
ways to streamline the referral process, by August 31, 1996.
We will revise our enforcement checklist for the purpose of improving initial case
preparation, thereby obviating the need for remedial information gathering. This will be
completed by September 30,1996.
We will expand the use of abbreviated Notices of Violation.
We wfll discuss with the Office of Regional Counsel, the continuation of the pilot case
review panel, which facilitates case planning. This will occur by September 30,1996.
We will encourage the Region to follow-up on the package of enforcement delegations
which was sent to EPA Headquarters on September 28,1995 and is stiD awaiting their
action. These delegations were intended to shorten the signature chain for various
enforcement actions.
Concerning Recommendation 3 and 4, the Air and Radiation Division will commit to include
discussions of timeliness of enforcement activities, as well as, the need for stipulated penalties and
injunctive relief in the fiscal year 1997 cycle of state agreement/MOA discussions. We will also
raise these items to Region 5's Office of Enforcement and Compliance Assurance for possible
inclusion in the EnPPA discussions. For Recommendation 5, we will reiterate our offer to our
states to assist them in any training or oversight activity directed at their local agencies, and also
express our willingness to consider action for cases referred to us. We will communicate this to
the states by September 30,1996.
Chapter 6
Generally, we concur with the main themes of this chapter and the associated recommendations.
Specifically, in response to Recommendation 1, by January 1,1997, we will review the Timely
and Appropriate Guidance with our states. Concerning Recommendation 2, during the fiscal
year 1997 cycle of state performance agreements/MOAs we will encourage all of our states to
develop, update and maintain electronic means of transmitting data to the AFS system. For
Recommendation 3, it is now the case that significant violators designated as Federal lead are, in
fact, actively being worked on by Air and Radiation Division stafit thereby achieving the desired
definitional consistency. This does not necessarily mean, however, that all state activity has
ceased. For Recommendation 4, we have engaged in many discussions over the past year with
headquarters regarding their data needs and implementing systems. We will reiterate our
concents at the upcoming AFS Workshop which will be conducted September 17-19,1996.
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ABBREVIATIONS
Act Clean Air Act, as amended in 1990
APS Aerometric Information Retrieval System Facility Subsystem
AIRS Aerometric Information Retrieval System
ARD Air and Radiation Division
EPA Environmental Protection Agency
EPA Penalty Policy Environmental Protection Agency Stationary Source Civil Penalty Policy
GAO General Accounting Office
Illinois Illinois Environmental Protection Agency
Indiana Indiana Department of Environmental Management
Michigan Michigan Department of Environmental Quality
NAPA National Academy of Public Administration
NOV Notice of Violation
OECA Headquarters' Office of Enforcement and Compliance Assurance
OIG Office of Inspector General
OPA Office of Public Affairs
ORC Office of Regional Counsel
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Perc Perchloroethylene
Region 5 OECA Region 5 Office of Enforcement and Compliance Assurance
Wisconsin Wisconsin Department of Natural Resources
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DISTRIBUTION
Region 5
Regional Administrator (R-19J)
Senior Leadership Team
Team Leader, CAST-PAAS (Followup Coordinator) (MFA-10J)
Director, Air and Radiation Division (A-18J)
Director, Office of Public Affairs (P-19J)
Regional Counsel (C-29A)
Regional Enforcement Coordinator (R-19J)
Library (PL-12J)
Intergovernmental Relations Officer (R-19J)
Headquarters
Agency Followup Official (3101)
Attn: Assistant Administrator, OARM
Agency Followup Coordinator (3304)
Attn: Director, RMD
Assistant Administrator for Enforcement and Compliance Assurance (2211)
Assistant Administrator for Air and Radiation (6101)
Associate Administrator for Regional Operations (1501)
Associate Administrator for Congressional and Legislative Affairs (1301)
Associate Administrator for Communications and Public Affairs (1701)
Headquarters Library (3401)
Office of Inspector General
Inspector General (2410)
Regional Offices
Regional Air Directors
Regional Enforcement Coordinators
Regional Directors of Public Affairs
75
Report No. 6100284
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Region 5's Air Enforcement and
Compliance Assistance Program
Appendix 3
Page 2 of 2
State Directors
Illinois Environmental Protection Agency
Indiana Department of Environmental Management
Michigan Department of Environmental Quality
Minnesota Pollution Control Agency
Ohio Environmental Protection Agency
Wisconsin Department of Natural Resources
76
Report No. 6100284
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