------- Inspector General Diviision Western Audit Division Conducting the Audit: San Francisco, California Region Covered: Region 9 Program Office Involved: Office of Underground Storage Tanks Hazardous Waste Management Division Cover Photograph: Removal of an Underground Storage Tank in Long Beach, California ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY %PB0^X OFFICE OF THE INSPECTOR GENERAL FOR AUDITS WESTERN DIVISION 75 HAWTHORNE STREET 19TH FLOOR, MAIL CODE M SAN FRANCISCO, CA 94105-3901 T September 30, 1992 MEMORANDUM SUBJECT: Report on Implementation of the Leaking Underground Storage Tank (LUST) Program in the State of California Audit Report No. E1LLB1-09-0200-2100665 FROM: Truman R. B Divisional Inspector General for Audit Western Division TO: Daniel W. McGovern Regional Administrator EPA, Region 9 San Francisco, California Attached are five copies of the subject audit report. The overall objective of our audit was to evaluate the adequacy of the implementation of the LUST program in California. The report contains important findings and recommendations regarding the sub j ect area . Since the report and recommendations are directed to your office, we have not distributed copies of the report to the Secretary of the California Department of Environmental Protection or other state officials responsible for administration of the LUST program in California. However, we have provided sufficient additional copies to your office for such a distribution, if you wish to do so. Action Required In accordance with EPA Order 2750, you, as the action official are required to provide this office a written response to the audit report within 90 days of the final audit report date. For corrective actions planned, but not completed by your response date, reference to specific milestone dates will assist this office in deciding whether to close this report. We have no objections to the further release of this report to the public. Printed on Recycled Paper ------- This audit report contains findings that describe problems the Office of the Inspector General has identified and corrective actions the OIG recommends. This audit report represents the opinion of the OIG. Final determinations on matters in this audit report will be made by EPA managers in accordance Wlt£ established EPA audit resolution procedures. Accordingly, the findings described in this audit report do not necessarily represent the final EPA position, and are not binding upon EPA in any enforcement proceeding brought by EPA or the Department or Justice. Should you have any questions about this report, please contact me or Geary Pena of our Sacramento Office at (916) 551-1076. Attachments ------- TABLE OF CONTENTS Page EXECUTIVE SUMMARY i CHAPTERS 1 - INTRODUCTION 1 PURPOSE 1 BACKGROUND 2 SCOPE AND METHODOLOGY 4 2 - PRIORITY SYSTEM USED FOR LUST CLEAN-UPS IN CALIFORNIA WAS UNACCEPTABLE 9 3 - CALIFORNIA'S LUST ENFORCEMENT PROGRAM WAS INEFFECTIVE 33 4 - REGION 9 WAS NOT EFFECTIVELY MONITORING CALIFORNIA'S LUST PERFORMANCE 57 5 - STATE PROGRAM WAS NOT MOVING TOWARD TIMELY APPROVAL 67 APPENDICES APPENDIX I - SCHEDULE OF AGENCIES IN THE LOCAL OVERSIGHT PROGRAM . . 78 APPENDIX II - ABBREVIATIONS 79 DISTRIBUTION 80 ------- EXECUTIVE SUMMARY PURPOSE EPA estimates that as many as 40 percent of the approximately 2 million underground storage tanks in the United States are leaking. As of December 31, 1991, the State of California (the state) reported 16,491 confirmed leaking tank sites, almost twice as many as any other state. Leaking tanks create human health and environmental risks because they frequently contaminate groundwater. Groundwater is the source of drinking water for half the United States. It is also used for irrigation, livestock watering, and industrial uses. Leaking tanks usually contain petroleum, which is a known carcinogen. Other adverse effects of contact with petroleum are nausea; skin, eye, and throat irritation; loss of reflexes; and liver and kidney damage. Facts such as these led Congress, in the 1986 amendments to the Superfund Amendments and Reauthorization Act (SARA), to set up a $500 million trust fund to assist in cleaning up leaks from underground storage tanks. In doing so, Congress handed EPA the enormous challenge of overseeing the clean-up program. Congressional intent, however, was that the clean-up program be implemented at the state level. The Federal role was to establish criteria and to aid the states in establishing their programs. Because of the significant environmental risks associated with leaking tanks, and EPA's relatively new role in this program, we initiated an audit of the implementation of the Leaking Underground Storage Tank (LUST) Program in California. The purpose of the audit was to: • Determine the adequacy of Region 9's (the Region) and the state's actions to prioritize the clean-up of LUST sites; • Evaluate the effectiveness of the Region's and the state's LUST related enforcement actions; and • Evaluate the effectiveness of the Region's monitoring of the state's performance under LUST cooperative agreements. BACKGROUND Because of national problems with leaking underground tanks, Congress amended the Resource Conservation and Recovery Act (RCRA) in 1984 to regulate underground storage tanks. In 1988, ------- the Federal rules for regulating tanks took effect. These rules, promulgated in the Code of Federal Regulations (40 CFR 280 to 281), required underground storage tank systems to be designed and upgraded to protect against leaks. They also required tank owners to insure or have some other way of paying for potential clean-up costs. Also, the regulations required a leak or spill over 25 gallons to be reported, and provided that any contaminated soils and groundwater must be cleaned up. After Congress amended RCRA, it further addressed the need to clean-up leaking tank sites by passing SARA in 1986. SARA established a $500 million LUST Trust Fund, paid for by a tax of 1/10 cent for each gallon of gasoline. The Trust Fund can be used for clean-ups of contaminated sites, or for the states' administration of the program. According to SARA, priority for clean-ups is to be given to those leaking underground tanks that present the greatest threat to human health and the environment. However, according to EPA1, the Trust Fund is intended to be a short-term solution to the problem of leaking tank sites. The long-term solution is for states to have tank regulatory programs that prevent leaking tanks from threatening human health and the environment. To fulfill its responsibilities under SARA, EPA sets the nationwide minimum standards and oversees the program for leaking tank site clean-ups, while allowing the states to operate the site clean-up programs. In this respect, the states' job is to oversee clean-ups where the owner or operator is taking action and to carry out clean-ups where no owner can be found or where the owner is insolvent. Through SARA, EPA is able to offer states LUST Trust Fund monies to operate the program. LUST Trust Funds Awarded by Region 9 FY 1987 to FY1991 EPA Regions provide Trust Funds to the states for the program through cooperative agreements (CAs). These CAs include a work plan setting out requirements for the state's clean-up program. From Fiscal Year (FY) 1987 to 1991, EPA awarded about $214 million in Trust Funds to the states. During that same period, the Region awarded about $22 million to its four states, of which about 73 percent went to California, as shown in the chart at the right. California 73% $15.8 million Arizona 16% $3.5 million ^Hawaii 4% $0.8 million evada 8% $1.6 million 'Federal Register, Volume 53, No. 185, September 23, 1988. ii ------- A significant portion of the LUST Trust Fund monies provided to California were being used ineffectively and contrary to the uses intended by SARA. The funds were being used for leaking tank site clean-up activities at lower priority sites, rather than at sites posing the greatest risk to human health and the environment. As a result, high risk sites were not being cleaned up timely, nor were aggressive enforcement actions being taken against responsible parties. Although California was awarded about $15.8 million in LUST CA funds from FY 1987 to FY 1991, we estimated that about $4.5 million had been expended on activities associated with low priority site clean-ups. We concluded that the use of LUST CA funds in this manner are contrary to the intent of SARA. This condition was attributable to several causes, including the fact that the Region had not required the state to establish or use a priority system that focused on sites with the greatest risk to human health and the environment. In addition, the Region had not required the state to develop and implement a meaningful enforcement program. This latter cause, contributed to site clean-ups being stalled and drawn out over many years. The Region had not previously identified these problems with the state's LUST program because it was not effectively monitoring and evaluating the state's performance. The Region's evaluations did not assess how well the state used the 75 percent of LUST CA funds which it allocated to its local agencies. We also found that the Region had not used the LUST CA funds in a manner to encourage the state to make reasonable progress toward getting its state program approved by EPA. PRINCIPAL FINDINGS Unacceptable The priorities established by the state to use its LUST CA funds did not fulfill the intent of SARA that such funds be directed to sites with the greatest risk to human health and the environment. As a result, there was no assurance that the $7.3 million of LUST CA funds expended for overseeing leaking tank site clean-up activities during FY 1988 to 1990 were directed toward such high priority sites. Rather, the state used an estimated $4.5 million of the funds to oversee lower priority clean-ups. In our opinion, the use of LUST CA funds for lower priority work was contrary to the intent of SARA. The Region needs to require the iii ------- state to direct its oversight activities to clean-ups at high priority sites statewide. This condition was attributable to the following: (i) the Region was not effectively monitoring the state's performance under the LUST program; (ii) a workable priority system had not been established in California; (iii) the state did not implement its priority system for LUST CA fund clean-ups; (iv) the state did not require counties to initiate site clean-up efforts on the most hazardous, environmentally-threatening leaking tank sites, including those affecting drinking water; (v) the state distributed LUST CA funds for site clean-up to only 21 of 58 counties in the state, rather than to high priority sites on a statewide basis. Further, many of the 21 counties did not oversee site clean-ups in major cities within their boundaries. California's LUST Enforcement Program Was Ineffective The Region has allowed an ineffective LUST enforcement program to exist within the state. During FY 1988 through FY 1991, the state reported that it expended $1.6 million in LUST CA funds to enforce clean-ups at leaking tank sites. However, the Region did not require the state to develop a meaningful enforcement program. We found that about 99 percent of the 8,344 enforcement actions reported by the state represented nothing more than notification letters advising leaking tank site owners and operators to clean-up their sites. The Region subsequently reported these notification letter actions as enforcement statistics to EPA Headquarters. We believe that this seriously overstates enforcement activity because the letters do not establish any kind of an action plan for timely clean-up of a site. In our opinion, there were several reasons for the ineffective LUST enforcement program, including: (i) the fact that the CAs did not require the state to establish an effective enforcement program, nor hold them accountable for not having one; (ii) a lack of emphasis on the importance of aggressive enforcement actions; (iii) inconsistencies between state and EPA enforcement policies; (iv) a lack of adequate staffing at the state's regional boards to handle the large number of enforcement actions assigned to them; (v) a lack of legal expertise at the local agencies to pursue complex environmental cases; (vi) outside interests which sometimes adversely affected enforcement actions; and (vii) the state had not taken advantage of an enforcement tool called "field citations". In our review, we judgmentally selected 38 leaking tank sites to review the status of enforcement actions. We concluded that enforcement action appeared appropriate at only one site. For iv ------- the other 37 sites, or 97 percent of those sampled, the enforcement actions were determined to be inadequate as follows: • Thirteen, or about one-third of the sites had no enforcement action taken, although the leaks had been reported for 2 to 11 years. • For 19 sites, where clean-up-and abatement orders were issued, the owner or operator had not complied with the terms of the order and no enforcement actions to assess penalties for noncompliance were taken. We calculated that the minimum and maximum penalties which could have been assessed for just 3 of the 19 sites ranged from $2.2 million to $22.3 million. • At five sites, where clean-up-and-abatement orders were issued and penalties assessed, the $226,540 of penalties were only a small fraction of the amounts that could have been assessed. The penalties which could have been assessed ranged from a minimum of about $1 million to a maximum of $10.4 million. We do not believe that the penalties assessed in these cases exceeded the cost of compliance, thereby negating their effectiveness. In view of the state's lack of an effective enforcement program, the Region has the responsibility to either require improvements or initiate appropriate enforcement actions on its own. Region 9 Was Not Effectively Monitoring California's LUST Performance The Region was not effectively monitoring the state's performance under EPA's LUST program, and had not established an adequate management system for determining progress being made to clean-up LUST sites. The Region had not evaluated: (i) the use of about $7.3 million, or 75 percent of the LUST CA funds used by California between 1988 and 1990; (ii) the progress the state was making cleaning up its leaking sites; or (iii) information included in state generated clean-up status reports before forwarding this information to EPA Headquarters. We concluded that these conditions contributed to serious problems with the state's LUST program. These problems included the need to implement an effective state priority system for site clean-ups and enforcement actions, as discussed in Chapters 2 and 3 of this report. Weaknesses in the Region's monitoring and management systems were attributed, in part, to the fact that the Region did not include specific requirements in the state's LUST CAs for performing critical activities in the areas of prioritizing site clean-ups and enforcement. We also determined that the state-generated information transmitted by the Region to EPA Headquarters overstated the site ------- clean-up progress being made in California. Since this information was being used by EPA to make nationwide funding decisions and to report the status of the LUST program to Congress, it was important that the status information be accurately reported. State Program Was Not Moving Toward Timely Approval The Region has not successfully used LUST CA funds as an incentive to encourage California to obtain timely approval of its state program. Although EPA has recognized a link between LUST CA funds and the Underground Storage Tank (UST) regulatory program, we believe that program approval could be used to correct weaknesses in both programs. This is particularly true since the Region has awarded about $15.8 million in LUST CA funds to the state. However, we do not believe that the state has made reasonable progress toward getting its state program approved. Specifically, we found that: (i) although the Region planned to incrementally approve each of the six required components of the state's program, none of the components had been approved; (ii) the state had not yet submitted for approval three of the required program components, namely: the memorandum of agreement with EPA; the state's demonstration that its enforcement procedures were adequate; and a letter from the Governor requesting program approval; and (iii) the state has requested and received three time extensions to its deadline for submitting a draft state program to the Region for approval. These extensions have delayed submission of the draft program by more than three years. We concluded that the state had little financial incentive to submit its program for approval, since the Region has not made LUST CA funding contingent upon this approval and there were no financial penalties for not having its program approved. The most obvious adverse effect of this situation in the LUST program is that the state's enforcement program was inadequate. As we discussed in Chapter 3 of this report, this has led to extended delays in initiating clean-up actions at leaking tank sites. We also noted that the other states (Nevada, Arizona, and Hawaii) in Region 9 do not yet have approved state programs. RECOMMENDATIONS Our detailed recommendations follow the findings, discussed in Chapters 2 through 5. However, in summary, we are recommending that the Region: VI ------- • Require California to revise its priority system so that the most environmentally threatening leaking tank sites are given the highest priority as required by SARA. • Monitor the quality and quantity of state enforcement actions to assure that the enforcement program is effective and being carried out according to EPA policy and guidance. • Require that CA work plans address all key LUST program activities, including a statewide priority system and effective enforcement program. These activities should be periodically evaluated by the Region. • Make future LUST CA funding contingent upon the Region's approval of California's state program. A draft report was provided to the Region on August 27, 1992. The Region responded to the draft report on September 25, 1992, and an exit conference was held on September 29, 1992. The Region provided the following overall comments: ...Because of the immense size of the LUST program in California, and the limited resources available to develop it, our short-term goal has been to assist the State to continually improve the program, towards the long-term goal of program approval. Many areas and recommendations identified as opportunities for improvement are ones that EPA and the State have already recognized, and are consistent with directions we have been embarking upon. However, there are some recommendations we strongly disagree with: ...use [of LUST] funding for state program approval as an incentive - at this time this would be counterproductive since California is moving forward with state program approval and continuing to build strong capability to implement the program; and...refine the implementation of California's priority system - we believe the priority system needs refinement and consistent application, but not at a statewide level. The Region's detailed comments follow the recommendations in Chapters 2 through 5. VII ------- PIG EVALUATION The Region's comments were positive in recognizing the need for improvements in the LUST program in California. However, we continue to maintain that the implementation of the recommendations in this report are necessary to have an effective LUST program that meets the intent of SARA. In particular, a statewide priority system is necessary because: • Sixty-four (64) percent of the state's LUST sites were not included in the geographic area covered by LUST CA funding. In addition, a majority of the leaking tank sites identified as affecting drinking water or groundwater were not included. • The requirements of SARA were not being fulfilled since the LUST CA funds were not directed to those sites with the greatest risk to human health and the environment. We disagree with the Region that linking LUST CA funding to state program approval would be counterproductive. The state has extended its deadlines for state program approval three times, resulting in a delay of the submission of a draft program by more than three years. According to state personnel, there was little financial incentive for the state to have its program approved by the Region. They further added that "If EPA was to tie LUST Trust Funds to obtaining state program approval, then the state would seek to have its program approved." In addition, guidance contained in OSWER Directive 9650.10 recommended linking LUST funding with state program approval, and further stated "Regions should develop criteria to measure and evaluate state progress. They should consider the degree of progress in allocating Trust Fund monies to States." Our complete evaluations of the Region's response to our recommendations are included following the Region's comments to each recommendation in Chapters 2 through 5. viii ------- CHAPTER] INTRODUCTION PURPOSE As the United States boomed in the post-war years, producing millions of cars and thousands of miles of roads to drive them on, a nationwide network of service stations requiring storage systems to fuel them sprang up. Millions of storage tanks were placed underground. This practice avoided dangers of fire and explosion, but it also had a disadvantage; it was hard to tell when these underground storage tank systems were leaking. A well installed underground storage tank system generally lasts 20 years or more. Over time, leakage problems, usually due to the slow corrosion of buried steel tanks or piping, often develop. EPA now estimates that as many as 40 percent of the approximately 2 million underground storage tanks are leaking; many are leaking into groundwater and hence, often times drinking water. Facts such as these led Congress to set up a $500 million Trust Fund to clean-up leaks from underground storage tanks in 1986. In doing so, Congress handed EPA the enormous challenge of overseeing the cleaning up of tens of thousands of leaking tank sites. Congress intended for EPA to play an important leadership role in tank clean-ups by requiring it to establish regulatory criteria. The state and local governments would then carry out the clean-up program wherever possible. California has reported the largest number of leaking tank sites of any state. Because of the significant environmental risks associated with leaking tank sites, and EPA's relatively new role in this program, we performed an audit of the implementation of the Leaking Underground Storage Tank (LUST) Program in California. The purpose of the audit was to: ------- in this program, we performed an audit of the implementation of the Leaking Underground Storage Tank (LUST) Program in California. The purpose of the audit was to: • Determine the adequacy of the Region's and state's actions to prioritize the clean-up of LUST sites; • Evaluate the effectiveness of the Region's and state's LUST related enforcement actions; and • Evaluate the effectiveness of the Region's monitoring of state's performance under LUST cooperative agreements (CAs). BACKGROUND Leaking underground storage tanks create human health and envi- ronmental risks. According to the Director of Region 9's Hazardous Waste Management Division: Much public attention is paid to Superfund's toxic dumps and hazardous waste sites, yet leaks from underground storage tanks are more commonplace and can be just as dangerous and costly. As of December 31, 1991, California reported 16,491 confirmed leaking tank sites. This was nearly double the number reported by the state with the next highest number. .i Leaking tank sites frequently contaminate groundwater. In fact, leaking underground tanks are one of the five leading sources of groundwater contamination in the United States2. Groundwater is the source of drinking water for half the United States, and, in many areas, the only source. It is also used for irrigation, livestock watering, and industrial uses. Leaking tank sites usually contain petroleum, which is a known carcinogen. Other adverse effects of contact with petroleum are nausea; skin, eye, and throat irrigation; loss of reflexes; and liver and kidney damage. Laws And Regulations Because of national problems with leaking underground tanks. Congress amended the Resource Conservation and Recovery Act (RCRA) in 1984 to regulate underground storage tanks. In National Water Quality Inventory. 1990 Report to Congress, dated March 1992. ------- 1988, the Federal rules for regulating tanks took effect. These rules, promulgated in the Code of Federal Regulations (40 CFR 280 to 281), cover five key areas: • Design and Construction: Underground storage tank systems must be protected from corrosion. • Leak Detection: Tanks must have leak detectors. • Spill and Overfill: Systems must have devices to prevent overfilling of the tank and catch basins to hold small spills. • Financial Responsibility: Tank owners must have insurance or some other way of paying for potential clean-up costs. • Clean-up: A leak or spill over 25 gallons must be reported. Contaminated soils and groundwater must be cleaned up. Congress further addressed the need to clean-up leaking tank sites when it passed the Superfund Amendments and Reauthorization Act (SARA) in 1986. This act established a $500 million LUST Trust Fund, paid for by a tax of 1/10 cent for each gallon of gasoline. The Trust Fund can be used for clean-ups of contaminated sites, or for the states' administration of the program. According to SARA, priority for clean-ups is to be given to those leaking underground tanks that present the greatest threat to human health and the environment. However, according to EPA, the Trust Fund is intended to be a short term solution to the problem of leaking tank sites. The long term solution is for states to have tank regulatory programs that prevent leaking tanks from threatening human health and the environment. To fulfill its responsibilities under the 1986 SARA amendments, EPA sets the nationwide minimum standards and oversees the program for leaking tank site clean-ups, while allowing the states to operate the site clean-up programs. To ensure the necessary protection of the environment, state programs must (i) be no less stringent than the Federal program; and (ii) provide for adequate enforcement of tank regulations. If a state program is not adequate, EPA may operate the program in that state. Through SARA, EPA is able to offer states LUST Trust Fund monies to operate the program. States do not actually clean-up a site unless the owner or operator of a tank site cannot be found. In most cases, states monitor the clean-up progress being made by the tank owner or operator by ensuring site assessments, clean-up plans, and disposal of contaminants is adequate. ------- EPA Regions provide LUST Trust Funds to the states for the program though CAs. These CAs include a work plan setting out requirements for the state's clean-up program. From Fiscal Year (FY) 1987 to 1991, EPA awarded about $214 million in Trust Funds to the states. During that period, the Region awarded about $22 million to its four states, of which about $15.8 million, or 73 percent went to California, as shown below. California Award Cooperative Amount As Agreement No. Of 12/91 Budget Period L009450-01-0 $ 8,410,000 09/23/87 - 09/30/90 L009566-01-0 7.340.000 10/01/90 - 09/30/93 Total $15.750.000 The CA funds provided to California were budgeted by cost categories, such as personnel, contractual, and indirect costs. The largest cost category was the contractual area, since the state LUST program under the CAs included delegating significant responsibility to 21 counties under the Local Oversight Program (LOP). Under the CAs, the state was tasked to: • Manage contracts with counties in the LOP; • Develop and manage a cost recovery process for costs incurred overseeing clean-ups; and • Provide technical assistance to the local agencies. The state was not required to perform clean-ups, unless the owner could not be found or is insolvent. About 75 percent of the funds spent by the state were provided to counties for overseeing clean-ups. Under the terms of the CAs, the state was required to cost share 10 percent of the total allowable program costs. The state contributed substantially more than 10 percent. From FY 1987 to FY 1990, the state indicated it spent $14.8 million. SCOPE AND METHODOLOGY We performed this audit according to Government Auditing Standards issued by the Comptroller General. Our field work was conducted from August 1991 to June 1992. The scope of our work was limited to EPA, Region 9 and LUST activities under the State of California's CAs. The audit covered management procedures in effect through June 1992. ------- The state's LUST program is administered by the State Water Resources Control Board (the state). The state operates with a network of nine Regional Water Quality Control Boards (regional boards) that cover different geographical areas of the state. We selected the following three regional boards for review: the Central Valley Regional Leaking Tank Sites By Regional Board Board, the San Francisco Bay Regional Board, and the Los Angeles Regional Board. The jurisdiction of these regional boards covered 11,734, or 71 percent, of the 16,491 leaking tank sites reported by the state, as shown by the chart. The state also distributed LUST funds to 21 Of the 58 counties in California. We made field visits to three of the counties receiving. LUST funds: San Joaquin County, Los Angeles County, and Ventura County. To accomplish our objectives we: 5,000 4,000 3,000 2,000 1,000 Regional Board As of December 31,1991 • Reviewed applicable laws, regulations, directives; and policies; • Interviewed responsible Region 9, state, and local government personnel; and • Examined records maintained by Region 9, the state, and local governments applicable to the administration of the LUST program. The records we examined were located at Region 9; the State Water Resources Control Board; the State Regional Water Quality Control Boards for the Central Valley, San Francisco Bay, and Los Angeles; and selected local agencies (counties and cities) within the geographic boundaries of the regional boards. Generally, the scope of our review included reports and records prepared from the inception of the state's program until December 1991. Some subsequent records were also examined to follow-up on information collected during prior periods. The records we reviewed included: ------- • Region 9's CAs with the state and the corresponding work plans; • Annual and semi-annual Region 9 performance evaluations of the state's performance; • EPA and state quarterly clean-up tank inventory and status reports; • State regional boards' clean-up inventory and status reports; and • Site-specific clean-up files located at the regional boards and local governments. Summary statistics were used to analyze the program whenever possible. We also requested and received some special reports from the state. These reports included: an aged listing of leaking tanks over three years old which had not been closed; financial information on LUST funds spent by the state, its regional boards, and local agencies; and the categorization of leaking tank sites (drinking water, groundwater, soil, and undetermined) that were included in the state's LUST funded inventory. The leaking tank site files that we reviewed were judgmentally selected. We selected the sites which we considered to have the most serious types of leaks, that is, those affecting drinking water and groundwater. However, other leaking tank site files were also reviewed. Internal Controls We reviewed the significant internal controls associated with Region 9's LUST program in the state including: • The CAs with the state and associated work plans; and • Region 9 annual and semi-annual performance evaluations of the state's CA performance. Our review of Region 9's LUST program in the state disclosed a number of instances where internal controls needed improvement. These are discussed in the Principal Findings section of the Executive Summary and in Chapters 2 through 5 of this report. Due to inherent limitations in any system of internal control, errors or irregularities may occur and not be detected. However, based on our review, nothing else came to our attention that caused us to believe that the Region was not in compliance with any other of the terms and conditions or applicable agreements, laws, and regulations for those areas of the LUST program tested. 6 ------- The scope of our audit did not include a review of the costs claimed by the state under its LUST program CAs. It also did not include a review of the associated LUST financial controls maintained by the Region and state. We did obtain unaudited information from the state which showed that $9.7 million of LUST funds were used under the CAs during FY 1988 through FY 1990. Prior Audit Work No prior audits have been performed on Region 9's LUST program. ------- This page intentionally left blank. 8 ------- CHAPTER2 PRIORITY SYSTEM USED FOR LUST CLEAN-UPS IN CALIFORNIA WAS UNACCEPTABLE The priorities established by the state to use its LUST CA funds did not fulfill the intent of the SARA that such funds be directed to sites with the greatest risk to human health and the environment. As a result, there was no assurance that the $7.3 million of LUST CA funds expended for overseeing leaking tank site clean-up activities from FY 1988 to 1990 were directed toward such high priority sites. Rather, the state used an estimated $4.5 million of the funds to oversee lower priority site clean-ups. In our opinion, the use of LUST CA funds for lower priority work was contrary to the intent of SARA, and the Region needs to require the state to direct its oversight activities to clean-ups at high priority sites statewide. Also, when LUST CA funds were used to oversee higher priority leaking tank site clean-ups, they did not always appear to be used effectively. This condition was attributable to the following: • The Region was not effectively monitoring the state's performance under the LUST program; • A workable priority system had not been established in California; • The state did not implement its priority system for LUST CA funded clean-ups; • The state distributed LUST CA funds for site clean-up to only 21 of 58 counties in the state, rather than to high priority sites on a statewide basis. Further, many of the 21 counties did not oversee site clean-ups in major cities within their boundaries; and • The state did not require the 21 counties to initiate site clean-up efforts on the most hazardous, environmentally- threatening leaking tank sites, including those affecting drinking water. BACKGROUND SARA requires states to give priority attention to LUST site clean-ups that pose the greatest threat to human health and the environment. The purpose of a state priority system is to ensure ------- that leaking tank sites addressed with LUST funds have the greatest impact on protection of human health and the environment. EPA's implementing guidance, the Office of Solid Waste and Emergency Response (OSWER) Directive 9650.10, requires states to establish and use a priority system in determining which leaking tank sites to fund with LUST monies. Oversight Of Leaking Tank Site Clean-Ups In 1987, the Region signed its first LUST CA with California. One of the main purposes of this and subsequent CAs was to provide Federal funding for oversight of leaking tank site clean- ups. Owners and operators of tanks are responsible for cleaning up the pollutants from their leaking tanks. However, state and EPA oversight is needed to make sure that: • Environmental damage is minimized; • The full extent of the pollution is diagnosed; • The site clean-up work is done properly and timely; and • The extracted pollutants are disposed of correctly. About 75 percent of the CA funds the state used were earmarked for site clean-up oversight. The state has distributed all of the LUST CA funds for site clean-up oversight to 21 counties under its Local Oversight Program (LOP). These 21 counties used about $7.3 million from FY 1988 to FY 1990. No CA funding was provided for oversight of clean-ups for sites outside the geographic areas of these 21 counties. The remaining 37 counties were, therefore, not funded. Role Of Regional Boards In The LUST Program The CA recipient in California, the State Water Resources Control Board, has nine Regional Water Quality Control Boards (regional boards). The only CA funds received by the regional boards are earmarked for technical assistance. The regional boards also oversee leaking tank site clean-ups when local agencies are unable, or unwilling, to do so. It should be noted that the regional boards did not receive any CA funds for site oversight. In September 1991, we requested information from the Region concerning the top priority LUST leaking tank sites in California. The Region advised us it did not know which sites had the highest priority. It indicated that this information was 10 ------- maintained by the state. As we discuss in detail in Chapter 4 of this report, we believe that the Region's lack of such critical information about the LUST program was a major contributor to the priority system conditions reported in this chapter. STATE PRIORITY SYSTEM WAS UNWORKABLE AND WAS NOT BEING USED We concluded that the state's established priority system for cleaning up leaking tank sites was not developed in a manner that assured attention to those sites most environmentally threatening to groundwater. Also, as established, the system places a relatively high priority on cleaning up leaks from non-petroleum sites. Such sites are outside the scope of the LUST program. Further, we found that the priority system established by the state was not actually being used. OSWER Directive 9650.10 reguires states to establish and use a priority system in determining which leaking tank site clean-ups to fund. In order to assure LUST funds are used effectively, SARA requires Federal funds to be applied to the highest priority leaking tank sites (those that pose the greatest threat to human health and the environment). State Clean-TJp Priority System Was Inadequate SARA requires leaking tank sites to be cleaned up based on priorities, as follows: The (EPA) Administrator (or State)...will give priority in undertaking corrective actions under this subsection, and in issuing orders requiring owners or operators to undertake such actions, to releases of petroleum from underground storage tanks which pose the greatest threat to human health and the environment. While OSWER Directive 9650.10 provides that every leaking tank site does not have to be ranked, it does require that LUST funds be used on the highest priority leaking tank sites within a state. California's CAs contained the following state priority clean-up requirements: 11 ------- Priority Type of Pollution 1 Groundwater pollution with cancer-causing chemicals that affects drinking water or other beneficial uses, such as crop irrigation. (Underscore added.) 2 Groundwater pollution by non-carcinocrenic chemicals that affects beneficial uses. (Underscore added.) 3 Groundwater pollution not affecting beneficial uses. 4 No groundwater pollution, but groundwater threatened if not cleaned up. In our opinion, the Priority 1 area is too large to be effectively used for directing LUST CA funds. A top priority based on beneficial uses does not readily distinguish one site from another due to the large number of sites affected. EPA guidance provides additional factors to assist in setting priority rankings. OSWER Directive 9650.10 provides that states may address SARA'S "threat to human health and the environment" criteria by considering such factors as: the total population exposed; proportion of the population affected in a community; the number of drinking water wells affected; and impact on sensitive populations or environmental areas. We believe that the Region should require the state to incorporate the above OSWER guidance into its priority system. The Priority 2 area is inappropriate under the LUST program. LUST CA funds are only to be used for petroleum leaks which, by definition, are considered carcinogenic. Although we did not identify any non-carcinogenic site clean-up activities funded with LUST money, the priority system should be changed to make sure the LUST funds are not improperly used. Priority System Not Used While the state had established a priority system, it was not being used to direct the use of LUST CA funds because: • CAS did not require ranking leaking tank sites on a statewide basis; and • The state had not actually assigned a priority to all of its identified leaking tank sites. 12 ------- As a result, not all leaking tank sites affecting drinking water (Priority 1 sites) were being actively cleaned up. We found that 48 of the 69 leaking tank sites identified as affecting drinking water were not being cleaned up timely. As illustrated in the following chart, the leaks at these 48 tank sites had been known for anywhere from 3 to 14 years. Tank Leaks Into Drinking Water Not Cleaned Up Over 3 Years Old Number of Sites 20 15 10 1977 1983 1984 1985 1986 1987 1988 Year Leak Reported All Leaking Tank Sites Not In Priority System. Only 21 of the 58 counties in California were receiving LUST CA funds. These were the only local agencies under the CAs required to follow the state's priority system. However, they had not implemented the state's priority system. In addition, leaking tank sites in the other 37 counties were not required to be ranked using the state's priority system. Priority Ranking Not Included In State's Site Data Base. While the state had a data base of leaking tank sites, we determined that sites in its data base were not assigned a ranking following the priority system. As summarized below, the state's data base merely identified whether a leak affected drinking water, groundwater, soil, or had an "undetermined" effect on the groundwater. 13 ------- NUMBER OF LEAKING TANK SITES BY TYPE OF EFFECT As of December 31, 1991 Leak Effect Number of Sites Percent Drinking Water 69 0.4 Groundwater 6,317 38.3 Soil 3,924 23.8 Undetermined 6,181 37.5 Total 16.491 100.0 The site designation used in the state's data base does not readily equate to a particular priority ranking. For example, the 6,317 leaking tank sites designated as affecting groundwater cannot be assumed to be Priority 1 because it is unknown whether they affect a beneficial use. Further, the data base designation "Undetermined" did not identify which, if any, of the 6,181 sites affect groundwater. CALIFORNIA WAS DIRECTING ITS EFFORTS TO LOWER PRIORITY SITES We believe that a significant portion of the LUST CA funds expended by local agencies for oversight activities were directed at lower priority sites (those only impacting soil or those with an undetermined affect). In our opinion, using CA funds for lower priority sites violates the intent of SARA, which requires that LUST funds be directed to the sites with the greatest threat to human health and the environment (i.e. Priority 1 sites). We estimated that about $4.5 of the $7.3 million in LUST CA funds expended by California were used to fund lower priority sites; while higher priority sites statewide remained unfunded. We based our estimate on the ratio of low to high priority sites within the 21 counties receiving LUST CA funds. It is recognized that this is imprecise, but it represented the only information readily available that we could reasonably rely on. LUST CA Funds Distributed On A Geographic Basis One of the principal reasons that the oversight activities were not being directed to the highest priority sites was because the state distributed LUST CA funds to only selected geographic areas 14 ------- (21 counties), rather than throughout the state based on environmental priorities. Under California's LOP, the state allocated CA funds on a geographic basis, which covered only 21 of the 58 California counties (36 percent of the sites) as shown on the next page. These 21 counties had agreements with an additional 16 cities to oversee leaking tank site clean-ups in their geographic areas. In making the funding allocations, the state apparently did not consider the adverse affect this would have on directing CA funds to higher priority sites on a statewide basis. Cities Not Included In Geographic Area. Many of the 21 counties under the LOP did not have oversight responsibility for the entire geographic area within their county because cities within their boundaries were excluded. For example, Los Angeles County received LUST CA funding under the state's LOP. However the City of Los Angeles was excluded from the county's geographic area, and there was no funding of oversight for sites within the City. Similarly, Orange County received CA funds under the LOP, but sites within the City of Anaheim were excluded. This condition further restricted the direction of CA funds to the highest priority sites. A list of the 21 funded counties and the cities located in their boundaries which were excluded from these counties' programs is detailed in Appendix I of this report. Other Local Agencies Excluded From LUST CA Funding. There were 80 additional agencies in California, which were not included in the state's LOP, and therefore, did not receive any LUST CA funding for clean-up oversight. This included 34 additional cities not under the jurisdiction of the 21 funded counties; 37 counties; and 9 state regional boards. These 80 agencies had 10,557 leaking tank sites under their jurisdiction according to the state's data base, including 4,149 sites affecting groundwater. No State Plans For Additional Local Agencies In The LOP. According to state personnel, the state has no immediate plans to allocate LUST CA funds to more than the existing 21 counties. The state informed us there was insufficient funding to franchise the program to all local agencies. Also, state personnel told us some local agencies did not want to join the LOP. We believe these statements, provide further reasons why the priority of a site, rather than geographic locations within the state, should be the basis for using the LUST CA funds in California. LOP County Sites Not Prioritized The 21 counties receiving LUST CA funds were not directing their oversight efforts to sites with the greatest risk to human health 15 ------- COUNTIBS RECEIVING LUST FUNDS Oversight Responsibilities For Cleanups Shaded counties are in the Local Oversight Program and received LUST funds. 16 ------- and the environment. As previously noted, the state's data base classified leaking tank sites into four categories based on the effect of the leak: drinking water, groundwater, soil, and undetermined. Although these four categories do not readily equate to the state's priority system for determining sites most environmentally threatening, we determined that as of December 31, 1991, the sites under the jurisdiction of these 21 counties included sites that affected only soil or sites with an undetermined effect. This was about 62 percent of the counties' sites. Under the state's priority system, these sites would not warrant a Priority 1 classification. In our opinion, the use of LUST CA funds for oversight activities on such sites violates the intent of SARA. As previously discussed, we estimate that $4.5 million of CA funds were used on oversight activities at these lower priority sites. ; LUST-Funded Sites Compared to Other Sites Ground/Drinking Water 2,237 Sites Ground/Drinking Water 4,149 Sites Undetermin 1,270 Siti Soil 2,427 Sites Undetermine 4,911 Sites Soil ,497 Sites LUST-Funded Sites Sites Not Receiving LUST Funds In addition to our estimate that $4.5 million of LUST CA funds were directed to lower priority sites, we are also concerned that a portion of the $2.8 million balance of LUST CA funds provided under the LOP were not spent effectively. For example, San Mateo County was aware of a leaking tank site that threatened drinking water as early as February 1985. In 1990, the county began using LUST CA funds to oversee the clean-up of this site. However, as of January 1992, seven years after the leak was first reported, and almost two years after beginning to use LUST CA funds for oversight, the owner had not provided the county information on the extent of the pollution problem or submitted a work plan for cleaning up the site. In January 1992, the county referred the 17 ------- site to the regional board for action. While we were unable to ascertain the total CA funds expended by the County for its oversight activities at the site, we did determine that the county had incurred more than $150,000 for all of its oversight efforts through December 31, 1990. Yet, for at least one site, the expenditures appear to have accomplished little in getting the site cleaned up timely. County Referrals To Regional Boards We found that the state allowed counties receiving LUST CA funds to transfer the oversight responsibility of a site, at any time, to the regional board in their geographic area. This resulted in a significant number of high priority sites being excluded from LUST CA funding because the regional boards did not receive such funds under the CAs. This practice also contributed to the counties use of LUST CA funding to oversee the lower priority sites. We found local agencies tended to refer oversight of leaking tank sites that posed the most environmental threat to regional boards because these clean-ups were the most difficult, costly, and time consuming to manage. Generally, these sites affected drinking water or groundwater. To illustrate the transferring of high priority sites to the regional boards, the following was determined from our review in Los Angeles County and in seven San Francisco Bay area counties under the San Francisco Bay Regional Board which received LUST funds. These counties included Santa Clara, Alameda, Sonoma, San Francisco, San Mateo, Solano, and Napa. Los Angeles County. Los Angeles County, one of the largest agencies in the CA funded LOP, spent $1.7 million of CA funds received during FY 1988 through FY 1990. The county advised us that it preferred to perform its oversight activities on lower priority soil sites, since they could be dealt with more quickly. The county usually transferred the sites affecting groundwater to the regional board for clean-up oversight. It should be noted that 74 percent of the 1,027 sites overseen by the county pertained to leaking tank sites that affected only the soil. We believe that this practice violated the intent of SARA, which requires LUST funds to be directed to sites with the greatest threat to human health and the environment. San Francisco Bay Area. The seven Bay area counties used $1.6 million of CA funds, received during FY 1988 through FY 1990. During this period, these counties referred oversight of 226 sites affecting groundwater (generally higher priority sites) to the San Francisco Regional Board. In the meantime, 208 leaking tank sites affecting only the soil were retained. 18 ------- Regional Boards Received No LUST CA Funds To Oversee Sites The state did not provide the regional boards any LUST CA funds to cover their oversight activities associated with leaking tank site clean-ups. In our view, this resulted in LUST oversight funding being directed away from higher priority sites. The regional boards had oversight responsibility for 43 percent of all leaking tank site clean-ups, and for about 57 percent of the sites affecting drinking water and groundwater in the state. The following chart shows that distribution of Federal LUST oversight funds from FY 1988 to 1990 compared to the numbers of sites reported as of December 31, 1991: LUST FUNDS FOR CLEANUP OVERSIGHT; FY 1988 to FY 1990 No. Of Leaking Tank Average Federal Sites as Funds Available No- °f Funds of 12/31/91 Per Site Agencies (a) (b) (a) -s- (b) 21 LOP Counties3 $7.3 5^934 $1,230 (Plus 16 Cities) Other Local 0 3,393 0 Agencies-70 Regional 0 7,164 0 Boards-9 As illustrated above, the regional boards and the local agencies not in the LOP received no LUST CA funds from FY 1988 to FY 1990. During the same period, the 21 counties in the LUST funded LOP used about $7.3 million in Federal funds. Thus, those counties in the LOP expended an average of about $1,230 per site in LUST CA funds over the three year period. However, the regional boards, which had the oversight for the largest number of leaking tank sites and generally the highest priority sites did not receive any LUST CA funds during the period. Reasons Whv Regional Boards Have So Many Sites. As previously discussed, the counties with LUST CA funding were transferring leaking tank sites affecting drinking water and groundwater to Includes an additional 16 cities that have agreements to allow the counties perform oversight for the leaking tank sites within the city limits. 19 ------- the regional boards, while the counties directed much of the oversight activities to sites affecting only soil. This condition contributed to a substantial work load at the regional boards. The regional boards' work loads were further increased by the fact that they performed clean-up oversight activities for leaking tank sites referred to them by the 37 counties that did not receive LUST CA funds. We estimated that as of December 31, 1991, the regional boards had oversight responsibility for about 1,900 tank sites within these counties. These referrals represented about 72 percent of the total leaking tank sites within these counties. The extent of referrals was illustra'ted by the following examples: • Marin County transferred 130 of 149, or 87 percent, of its leaking tank sites to a regional board for oversight. • El Dorado County transferred all of its 71 leaking tank sites to a regional board. Backlog At The Regional Boards. There was a large backlog of leaking tank sites awaiting clean-up oversight action at the regional boards. Our review of the San Francisco Bay Regional Board and the Los Angeles Regional Board records showed that no oversight action had been initiated in 77 percent of the 2,817 leaking tank sites affecting drinking water or groundwater within their jurisdiction. These two boards were responsible for 54 percent of the leaking tank sites under the jurisdiction of regional boards. Regional Boards Not Using Priorities We reviewed three of the state's nine regional boards to assess whether they had assigned priorities to the leaking tank sites within their geographic areas. The review included the San Francisco Bay Regional Board, the Los Angeles Regional Board, and the Central Valley Regional Board. We concluded that the San Francisco Bay and Central Valley Regional Boards were not directing adequate oversight to cleaning up the most environmentally threatening sites. The Los Angeles Regional Board was doing a better job of directing its oversight activities to higher priority sites; but we identified opportunities for improvement. San Francisco Bay Regional Board. This regional board had established its own priority system for leaking tank sites. The board was assigning its highest priority code to sites where a "bubble" of fuel (free product) was found floating on groundwater. We concluded the regional board's priority system was inconsistent with the state's priority system. Under the 20 ------- state's priority system, the highest priority was to be given to groundwater pollution that affected beneficial uses, regardless of whether there was free product, or the fuel had dissolved into the groundwater. Not withstanding the appropriateness of the regional board's priority system, we also found that the board had not initiated any oversight action on 311 of the 321 clean-up sites, or 97 percent, to which it had given a high priority designation. For example, in February 1990, a leak was reported at a site in Redwood City that affected groundwater. At that time, the owner reported a preliminary assessment was underway. Although the regional board had given this site its highest priority code, it did not take any action on this site. A February 1992 regional report showed that the site had not been cleaned up, and that a clean-up was not underway. The regional board also had jurisdiction for another 728 sites that affected groundwater, but which had not been given a high priority code under its system. None of these sites were being worked on. However, we noted the board was overseeing clean-up action on five low priority sites that affected only the soil, and 41 other sites where an effect on groundwater had not been confirmed. Central Valley Regional Board. We found that oversight of high priority leaking tank sites affecting drinking water needed improvement at the Central Valley Regional Board. Our review disclosed that the regional board was overseeing the clean-up of only two of the seven sites affecting drinking water. The case file for another site was incomplete and we were unable to determine its status. With respect to the four other high priority cases, we found that clean-up action had not been started because, either the owners claimed they did not have sufficient funds; or the regional board had not taken prompt action to initiate oversight activities. We consider such delays involving drinking water sites a significant human health risk, since the existence of leaking tanks at these sites have been known for periods of up to seven years. The results of our review of two of the four sites without any clean-up action are discussed as follows. Vacaville. A leaking tank at a gas station was discovered in March 1988, and was found to be polluting a domestic well used for drinking water. Our review of the case file showed the owner had not responded to a nearly 2-year old request for a final clean-up plan. In this case, the regional board had requested a final clean-up plan from the owner of the site by May 1990. However, as of February 1992, nearly two years later, there was no evidence of further communication to ascertain why the plan had not been received. Since leaking tank sites which affect drinking water are the highest priority within the state, it is 21 ------- difficult to understand why no action was taken on this site in the past two years. Sonora. This case pertained to a gas station which had leaking tanks that polluted two drinking water wells. The leaking tanks were discovered in June 1985. Our review of the case file showed that no action had been taken on this case since it was referred to the regional board in January 1989, over three years ago. We brought these sites to the attention of regional board personnel, who stated that the sites should have been worked on. However, they informed us that they gave on-going clean-up-and- abatement orders (enforcement actions) a higher priority for the use of their limited resources. While the board's comments are acknowledged, we believe that the state has a responsibility under the CAs to direct resources to the leaking tank sites affecting drinking water. Los Angeles Regional Board. The. Dos Angeles Regional Board was overseeing clean-ups at 587 high priority groundwater sites and 232 lower priority leaking tank sites (those affecting soil or where an affect on the groundwater had not been confirmed). It also had 367 higher priority sites that affected groundwater, which it classified as "inactive", since there was no oversight activity or clean-up activity. We attempted to review two of the oldest "inactive" groundwater affected sites during our visit to the regional board in March 1992. Both of these leaking tank sites had been identified for more than eight years. One was reported in 1982 and the other in 1983. Regional board personnel attempted to locate the two case files, but were unable to find them. They indicated that the files had been lost during an office move in 1989. Without these files, the regional board did not know the extent of the pollution problem or any other information relating to the site. It, therefore, did not know if these sites were properly classified under its system, or if the site was posing a danger to human health and the environment. SUMMARY As discussed in this chapter of our report, the state's LUST program has exhibited a general lack of attention to the oversight of leaking tank sites with the most potential for adversely affecting human health and the environment. This has resulted in an estimated $4.5 million of California's LUST CA funds being used for the oversight of lower priority clean-ups. With respect to the LUST program, SARA provides that: 22 ------- The Administrator (or a State...) shall give priority in undertaking corrective actions under this subsection, and in issuing orders requiring owners or operators to undertake such actions to releases of petroleum from underground storage tanks which pose the greatest threat to human health and the environment." The Region needs to take several actions discussed in the recommendations below, to improve the state's program so that it will comply with the intent of SARA. RECOMMENDATIONS We recommend that the Regional Administrator: 1. Require California to revise its priority system to comply with the intent of the SARA by assuring that: a. Additional ranking criteria are used to identify the most environmentally threatening tank sites affecting groundwater with a beneficial use; b. Non-LUST sites are excluded from the priority system; and c. The priority system is applied uniformly on a statewide basis. 2. Require California to: a. Assign its priority code to all leaking tank sites in the state's data base. This should include those sites currently classified "undetermined". b. Direct LUST CA funds to regional boards for oversight clean-up activities at higher priority sites on a statewide basis. 3. Limit the use of future LUST CA funds for oversight activities to the highest priority sites on a statewide basis. 4. Periodically review the state performance under the LUST program to assure that it has effectively implemented its state priority system. 23 ------- Regional Response. The Region provided the following comments on the finding: Overall Comments. The Region responded that: We agree that the application of the State priority system should be refined and more vigorously applied. We are currently discussing with the State how to better oversee the implementation of the priority system. We currently believe that the statewide inconsistency in applying the priority system is more crucial to the LUST program, and we will work with the State to ensure that this is addressed. Regional Response To Recommendation 1. The Region generally disagreed with this recommendation, and commented that the state uses a priority system that meets the needs of the Federal requirements. Regarding the need to use additional ranking criteria as recommended in recommendation l.a., the Region said: The State of California currently has and uses a priority system to guide local decisions, which meets the needs of the Federal requirements. OSWER Guidance Directive 9650.10 states that States must have a priority system for addressing UST petroleum release sites which incorporate two priorities: 'releases which pose the greatest threat to human health and the environment; and sites where the State cannot identify a solvent owner or operator of the tank who will undertake action properly.' California has developed this priority system to clearly identify groundwater pollution with cancer- causing chemicals as the top priority. The top 3 priorities, in fact, discuss groundwater pollution, as the IG has noted. The top priority is large because the universe of sites in the State is enormous, and a number of those sites impact groundwater. We agree that the priority system should be refined, but at the local level where it can be applied to hydrogeologic basins or other geographic areas where it makes the most environmental sense. With respect to recommendation l.b. concerning the exclusion of non-LUST sites from the priority system, the Region noted: 24 ------- Federal LUST funds are not applied to non-petroleum tanks, therefore we feel this recommendation is inappropriate. We should not dictate the priorities for the States broader universe. Many of the facilities captured under the State program also represent a significant potential or current threat to public health and the environment. The Region did not agree with recommendation I.e. concerning the application of a priority system on a statewide basis, and responded that: We agree that the California priority system needs to be uniformly and more consistently applied, but we believe that it should be implemented at a local level. There should be adequate protection of human health and the environment by each local agency or Regional Water Quality Control Board ranking their sites and addressing the highest priorities first. This can more sensitively take into account vulnerable aquifers, hydrogeological differences, and other variables. By funding the local agencies to oversee LUST cleanups we are not only ensuring the sites are being prioritized and cleaned up, but we are investing in capabilities of the local agencies to deal with future LUST sites. Funding this effort must be balances with the need to build capability at the local level. Federal dollars are 23% of the overall amount which goes to fund the LUST program and oversight by the State. The remaining 77% of the program is funded by the State, who must balance local needs with an attempt to ensure consistent application of the priority system, and these funds must be applied to other State priorities as well. We must balance the requirements of the Federal regulations with the immediate needs of the State and local agencies responding to leaking tanks. While will continue to encourage the State to focus on cleaning up groundwater contained by leaking underground tank sites, we also appreciate the sound environmental decision-making that has resulted in cleanups of soil contaminated sites which pose current or potential health threats. Many contaminated soil sites present a high risk in areas where there is high population density, or where the proximity of the contaminates site to the public makes it a health threat. In addition, where the responsible party of a soil contaminated site is ready and willing to undertake immediate remediation, agencies have an obligation, and have generally 25 ------- committed the resources to oversee this action. In these cases, it costs less to oversee cleanup while achieving an immediate environmental benefit. Furthermore, many soil contaminates sites pose potential groundwater threats were contamination is close to the aquifer. We recommend requiring the State to submit a strategy to ensure consistent application of the priority system. We will review it to ensure it is complete and address our concerns. Finally, we will review the effectiveness of the effort, and adjust future work plans accordingly. OIG Evaluation. We disagree with the Region's comment that the state's priority system meets the Federal LUST program requirements. According to OSWER Directive 9650.10: The purpose of the State priority system requirement is to ensure that sites addressed with Trust Fund monies provide the greatest impact on protection of human health and the environment... States may address the 'threat to human health and environment' criteria by considering factors such as total population exposed, proportion of population affected in a community, number of drinking water wells contaminated, proximity to a major aquifer, and impact on sensitive populations or environmental areas. The state's top priority category, groundwater affecting beneficial uses, was too large to be effectively used for directing funds. There were about 6,300 leaking tank sites that affected groundwater and, potentially, a beneficial use. Clearly, each of these sites did not have an equal impact on human health and the environment. Additional criteria, as recommended by OSWER, are needed to prioritize sites and provide a basis for identifying a manageable number of top priority sites. Hydrogeologic basins and other reasonable geographic criteria can be included in the State's priority system. A recent study by the state's Office of Program Evaluation, in July 1992, agreed that the state's priority system was inadequate. The study concluded that: The tanks program does not uniformly address the most important water quality sites first, despite several stabs at priority policies. In 1987, the State Board adopted Resolution 87-73...While it provided a good start, it did not offer a realistic State approach nor a specific scheme for a site by site evaluation; it appears largely ignored. 26 ------- Regarding the Region's comments to recommendation l.a., we do not agree that the refinement of priorities should be left to local agencies. The local agencies would hardly be an unbiased source to establish priorities in view of political pressures, economic constraints, and other restrictions. Our position was shared by the state^s Office of Program Evaluation which found that local agencies in the Local Oversight Program (LOP) thwarted the state's priority system. According to its July 16, 1992 memorandum: With informal agreement by the State Board, agencies entering into the LOP often started with and pursue 'easier' soil cases. No surface or ground water priority scheme is identified in the past or current LOP contracts. This has created a situation in which LOPs currently handle a much greater...percentage of soil cases than ground water cases...When LOPs request technical assistance, site review, closure letters or help with enforcement, the Regional Boards are drawn away from higher priority water quality sites. Given limited resources, most Regional Boards and LOPs have chosen to concentrate on sites such as these where they will have to spend the smallest dollar for the greatest site progress...This practice does not necessarily or systematically address the greatest water quality need. In regard to recommendation l.b., the Region's response did not adequately address our recommended actions. The point raised by the recommendation was that the state's priority system contained a priority which was not appropriate for determining which sites Federal funds could be applied. While the state can use any priority system it wishes for state funds, the use of Federal funds must be consistent with Federal priority criteria. With respect to recommendation I.e., the Region again reiterated that the priority system should be implemented at the local level. We do not agree with this approach. In order to meet the requirements of SARA, the most environmentally threatening sites must be identified on a statewide basis. Federal funds can only be applied to the most environmentally threatening sites. There should be a consistent, verifiable basis for identifying these high-priority sites on a statewide basis. The local agencies should not be allowed to choose the lower priority sites for the use of Federal funds. Further, by limiting funding for clean-up oversight to only 21 counties, the Region has excluded a majority of the stated high- priority sites from Federal funding. In our opinion, this funding practice did not comply with the intent of SARA. Certainly, the state can use its own monies to fund certain local 27 ------- agency programs and not others. However, the state should not have the prerogative to limit Federal funding to selected geographic areas, without regard to environmental priority. We also do not agree that the use of Federal funds to clean-up leaks that affect only soil is justified under the state's current priority system. Under the state's priority system, leaking tank sites that affect only soil have the lowest priority system and risk to the environment. Further, we identified no additional criteria being applied by local agencies to justify the use of Federal funds on soil sites. Obviously, when Federal funds are spent to oversee soil clean-ups, these funds are unavailable for groundwater and drinking water clean-ups. We share the Region's concerns that some soil contamination problems may be significant. However, the Region will have to work with the state to develop a priority system which addresses these types of problems. We also acknowledge the importance of developing state and local clean-up programs. However, SARA clearly allows states to use Federal funds on only high priority sites. The Region also commented that the state funds 77 percent of the LUST program, while EPA's funding only represented 23 percent. While we agree that this was an accurate description of funding at the early stages of the LUST program, by FY 1991 the EPA share of the LUST funding had exceeded the state contribution. We concur with the Region's efforts to require the state to submit a strategy to ensure consistent application of a priority system. However, it remains our position that this priority system must: (i) include additional ranking criteria; and (ii) rank all sites statewide. Further, the Region needs to ensure that Federal LUST funds are used only on the top priority sites. Regional Response To Recommendation 2. The Region did not fully respond to recommendation 2.a. which provided for the assignment of a priority code for every site. The Region stated: We will work with the State in developing a plan and schedule to prioritize and place priority codes on the undetermined sites, as the information is made available from responsible parties. It will take resources to review responsible party actions who will do site assessments and characterize the extent of the contamination adequately, and for the State to assign codes to the sites. Regarding recommendation 2.b., which provided for the Region to fund the state regional boards, the Region disagreed and commented that: 28 ------- We recognize the need for additional funding to the Regional Boards, and have been increasing the amount of Federal funds being directed to them. For FY 93, we have increased the LUST funding incrementally over FY 92 to the Regional Boards, as has the State. In addition, for FY 93 the State is committing $2.8 million to the Regional boards from their state general fund for oversight. We recommend that we assess the effectiveness of increasing the funding going to Regional Board at the FY 93 mid-year, and determine at that time whether other steps need to be taken to ensure adequate oversight and response at the Regional Board. For instance, we will request that the Regional Boards provide additional information regarding the use of funds. OIG Evaluation. Regarding the assignment of priorities, the Region did not address the need to prioritize sites, other than those categorized as undetermined. Further, the Region did not agree to assign priorities on a statewide basis. As noted in our previous evaluation, the state's top priority category of groundwater affecting beneficial uses was too large to effectively direct the use of funds. There were about 6,300 leaking tank sites that affected groundwater, and potentially beneficial uses. Clearly, each of these sites did not have an equal impact on human health or the environment. In our opinion, refined priorities need to be assigned on a statewide basis to all sites. With respect to recommendation 2.b., we disagree with the Region's implication that the oversight funds provided to the regional boards have increased. To the contrary, the regional boards have been provided no Federal funds for clean-up oversight, even though they are responsible for 1,230 more sites, or 21 percent, than counties receiving Federal funds. Our concerns were shared by the state Office of Program Evaluation which commented that: "Program resources do not match the overall workload at the LOP [Local Oversight Program counties] vs. the regional board. Less work and more money is at the LOPs." The Federal funding currently provided to the regional boards are only for technical advice to local agencies. Again, it remains our position that Federal funding for clean-up oversight must be based on the priority of the cases being worked on, and not whether or not an agency is in the state's Local Oversight Program. 29 ------- Regional Response To Recommendation 3. The Region did not agree that LUST funding should be limited to the high-priority sites on a statewide basis and said: ...Limiting the use of LUST funds would effectively eliminate the Local Oversight Program, which was instituted because of the size of the California universe [which] made State site-specific oversight inappropriate and not practicable. Some local agencies do not have on-site technical staff to work on groundwater sites - eliminating funding could in effect limit further work on contaminated groundwater sites. As discussed earlier, soil contaminated sites often have current or potential public health and environmental impacts, either through soil contamination itself or through impacts on the groundwater, and these are important to address. To follow up on the IG's recommendation regarding priorities, we will request a strategy to address consistency in application of the State priority system, and use or mid- and end-of-the-year reviews to examine progress. OIG Evaluation. The intent of our recommendation was not to eliminate the Local Oversight Program. We do believe that the agencies in the state's Local Oversight Program should not be receiving Federal funds for low-priority sites. SARA requires that LUST funds be spent on the sites that have the greatest threat on human health and the environment. OSWER Directive 9650.10 also states that the priority system should function on a statewide basis: The priority system or scheme should be used as a screening device to assure that sites considered to be addressed with Trust Fund monies are within the higher priority classes established by the State. (Emphasis added.) The 21 counties in the Local Oversight Program should only receive LUST funds commensurate with the workload of high- priority sites being managed. Since they were responsible for only 36 percent of all sites, they should not receive 100 percent of the Federal LUST oversight funds. Other sites in the state should have equal opportunity for Federal LUST oversight funding, commensurate with their priority. We also do not agree that lower priority soil sites should be Federally funded at the expense of higher priority sites within the state. The state can use its own funds to develop local 30 ------- agency technical expertise on lower priority soil sites. However, in our opinion, this option is not available for Federal funds. We recognize that some counties do not have the capability to oversee complex water contaminated sites. In these instances, it was appropriate to provide Federal funding to the activity that was overseeing the clean-up, namely the regional board. Regional Response To Recommendation 4. The Region agreed to the recommendation and stated: We will use mid-year and end-of-the-year reviews, in addition to overall accounting, to focus on the implementation of the State's priority system by qualitatively examining the priorities of the LUST clean-ups completed and mitigated. We will also use QA/QC to determine if the priority system is effective. OIG Evaluation, The Region's response addressed clean-ups that have been completed and mitigated. It did not consider the vast majority of the sites that have not been cleaned up. According to the state's Office of Program Evaluation study: Increasing caseload paired with resource intensive oversight has swamped the Regional Boards and LOPs. 83% of the currently known tank leak sites have not been closed. Some regional boards have boxes of unreviewed, backlogged sites. The time to ensure that a priority system is effective is before funds are provided to the sites, not after. The Region needs to determine if all sites receiving Federal funding are of the highest priority, regardless of the status of the site. Further, the Region should ensure high-priority sites are not being ignored while lower priority sites are receiving LUST-funded oversight. 31 ------- This page intentionally left blank. 32 ------- CHAPTERS CALIFORNIA'S LUST ENFORCEMENT PROGRAM WAS INEFFECTIVE The Region has allowed an ineffective LUST enforcement program to exist within the state. During FY 1988 through FY 1991, the state reported that it expended $1.6 million in LUST CA funds to enforce clean-ups at leaking tank sites. However, the Region did not require the state to develop a meaningful enforcement program. We found that about 99 percent of the 8,344 enforcement actions reported by the state represented nothing more than notification letters advising leaking tank site owners and operators to clean-up their sites. The Region subsequently reported these notification letter actions as enforcement statistics to EPA Headquarters. We believe that this seriously overstates enforcement activity because the letters do not establish any kind of an action plan for timely clean-up of a site. In our opinion, there were several reasons for the ineffective LUST enforcement program, including: (i) the fact that the CAs did not require the state to establish an effective enforcement program, nor hold them accountable for not having one; (ii) a lack of emphasis on the importance of aggressive enforcement actions; (iii) inconsistencies between state and EPA enforcement policies; (iv) a lack of adequate staffing at the state's regional boards to handle the large number of enforcement actions assigned to them; (v) a lack of legal expertise at the local agencies to pursue complex environmental cases; (vi) outside interests which sometimes adversely affected enforcement actions; and (vii) the state had not taken advantage of an enforcement tool called "field citations". In our review, we judgmentally selected 38 leaking tank sites to review the status of enforcement actions. We concluded that enforcement action appeared appropriate at only one site. For the other 37 sites, or 97 percent of those sampled, the enforcement actions were determined to be inadequate as follows. • Thirteen, or about one-third of the sites had no enforcement action taken, although the leaks had been reported for 2 to 11 years. • For 19 sites, where clean-up-and abatement orders were issued, the owner or operator had not complied with the - terms of the order and no enforcement action to assess penalties for noncompliance were taken. We calculated that 33 ------- the minimum and maximum penalties which could have been assessed for just 3 of the 19 sites ranged from $2.2 million to $22.3 million. • At five sites, where clean- up-and-abatement orders were issued and penalties assessed, the $226,540 of penalties were only a small fraction of the amounts that could have been assessed. The penalties which could have been assessed ranged from a minimum of about $1 million to a maximum of $10.4 million. We do not believe that the penalties assessed in these cases exceeded the cost of compliance, thereby negating their effectiveness. In view of the state's lack of an effective enforcement program, the Region has the responsibility to either require improvements or initiate appropriate enforcement actions on its own. Penalties Under 5 Orders Millions ''/"„; ••'' ''„'/*'', >, '.\, -.we'ytf-Ttf:*- .'/..,«. x *?. i'x t », i i 1 ., Maximum ',-, , s " x * + ^jt v^ -'„_ Actual BACKGROUND Delegating Enforcement In accordance with the provisions of SARA, the Region, through the CAs, has delegated the LUST clean-up enforcement program to the state. Under the CAs, the State Water Resources Control Board was given authority to enforce LUST clean-ups, using state regulations. In accordance with the state's Porter-Cologne Water Quality Control Act, it further delegated its enforcement respon- sibilities to: its nine regional boards; and to 108 local agencies with included counties, cities, and special districts. The state also provided 21 counties, representing 38 of the 108 local agencies, with LUST funds for enforcement activities through the Local Oversight Program (LOP). The regional boards and the remaining 70 local agencies did not receive any LUST funds for enforcement activities. During FY 1988 through FY 1991, the state reported to the Region that it had expended $1.6 million of LUST CA funds for enforcement activities. 34 ------- Using Enforcement Techniques In order for environmental laws and regulations to work, they must be enforced. Enforcement is especially important for leaking tank site clean-ups for two primary reasons: • The owner or operator generally has no motivation to clean-up a leaking tank site; and • Delaying clean-up action can extend the contamination, especially when drinking water or groundwater is affected. According to EPA's General Enforcement Policy No. 21, one of the most essential elements of an enforcement program is the effective use of penalties to deter would-be violators and to punish violators. The policy also addresses the importance of assessing penalties that are more than the cost of compliance. Further, EPA's OSWER Directive 9650.10 requires the states to have a set of clearly defined enforcement policies and procedures, that meet Federal requirements. The directive also requires that EPA Regions evaluate a state's existing or potential capabilities for enforcement as part of the CA negotiation and award process. The Regions are expected to retain responsibility for involvement in state enforcement cases when it would be beneficial for program compliance or enforcement strategy. Laws And Regulations The Federal enforcement requirements are discussed in the 1984 RCRA and are further defined in the 1986 SARA amendments to the RCRA. These Acts were implemented by the Federal rules contained in 40 CFR 280 to 281, which were adopted in September 1988. In addition, OSWER Directive 9650.10, which defines enforcement policies and procedures, was implemented in February 1989. In accordance with the CA, the Region has delegated enforcement responsibilities to the state. The state enforcement procedures are contained in its Porter-Cologne Water Quality Control Act and the California Health and Safety Code. ENFORCEMENT WAS INAPPROPRIATELY DELEGATED The Region delegated its LUST clean-up enforcement respon- sibilities to the state, although the CAs did not hold the state accountable for establishing and maintaining an effective enforcement program. In our opinion, this delegation, without accountability, was a primary cause for the state's ineffective enforcement program. Further, the delegation did not comply with 35 ------- OSWER Directive 9650.10, which required that the Region evaluate the state's existing or potential capabilities for enforcement as part of the CA negotiation and award process. In this instance, the CAs did not establish requirements for the state to take prompt, effective actions that require owners to clean-up leaking tank sites. It also did not hold the state accountable when these actions were not taken. Instead, the CAs merely spelled out the authorities that the state, its regional boards, and local agencies have in the enforcement area. The CAs only included one task in the enforcement area. This task was to "Identify the party responsible for a leak (and)...notify each responsible party of their obligation to investigate and remedy UST releases (leaks)..." According to SARA, states cannot participate in the LUST program unless they have an effective enforcement program. SARA provides that: A State may exercise the authorities (for LUST clean- ups)... if the Administrator (EPA) determines that the State has the capabilities to carry out effective corrective actions and enforcement activities. EPA's OSWER Directive 9650.10 provides that a "state may use its best professional judgement and enforcement discretion as long as they result in an effective enforcement program". As discussed in this chapter, we concluded the state's enforcement program was not effective. We concluded that the LUST enforcement program in California was not an effective tool in deterring would-be violators or in punishing violators. To illustrate: • Neither the Region or the state were aware of the total number of enforcement actions taken at leaking tank sites nor the amount or adequacy of the penalties assessed. This condition occurred because the state only tracked the number and type of enforcement actions taken by the 21 counties receiving LUST CA funds. It did not track enforcement actions taken by its regional boards or by other local agencies. Further, the state acknowledged that the statistics on the number of reported enforcement actions by the 21 counties was unreliable. Without accurate statewide enforcement information, neither the Region or the state can determine if enforcement policies are being carried out. • The state's LOP agreement with the 21 counties did not mention or otherwise require the local agencies to take enforcement actions. 36 ------- • There was little documentation available to indicate that the Region seriously addressed the lack of enforcement actions with the state. The Region did not mention California's enforcement results in its annual evaluations of the state's LUST program. To the contrary, the Region accepted the state's reported enforcement actions without validation, and passed these actions to EPA Headquarters. However, we found that about 99 percent of California's 8,344 reported enforcement actions from FY 1987 to FY 1991 were merely notification letters advising owners and operators of their responsibilities to clean-up leaking tank sites. In a February 5, 1991 annual performance evaluation of the state's CA activity for FY 1990, the Region noted that the state spent only 16 percent of its LUST CA funds in the enforcement area. The evaluation indicated that this was well below the average nationwide LUST enforcement expenditure, which was 56 percent. However, instead of requiring California to step up its enforcement actions, the Region stated that "The State Board needs to take a more active role to ensure that expenditures were charged to the enforcement category." It is not clear from the above statement whether the Region wanted the state to verify its enforcement charging procedures, or to require the state to alter its bookkeeping method to charge more time to the enforcement area. Nevertheless, the above statement clearly did not address the effectiveness of the state's enforcement program. CLEAN-UP LAWS AND REGULATIONS NOT ENFORCED The state was not effectively using penalties as an enforcement tool to aggressively enforce leaking tank site clean-up laws and regulations. It did not consider enforcement to be a priority, and spent very little time in the enforcement area. As previously noted, in FY 1990, the state spent only 16 percent of its LUST CA funds on enforcement compared to the nationwide average of 56 percent. 37 ------- LUST FUNDS SPENT ON ENFORCEMENT California versus the Nation Enforcement 16% Enforcement 56% Further, we found that funds spent on enforcement were not always used effectively, and did not lead to the timely clean-up of leaking tank sites. Because of the lack of reliability of the state's management information system relating to enforcement actions, it was necessary for us to make a judgmental sample of enforcement actions at selected leaking tank sites. We then reviewed the individual case files for the selected sites at the respective regional boards and local agencies. The sites selected were in the geographic areas of the San Francisco Bay, Los Angeles, and Central Valley Regional Boards. Our review showed that, with one exception, virtually all owners or operators were allowed to delay site clean-ups for years. We attribute this condition principally to the state's weak enforcement program. Specifically, for 37 sites, we found that: (i) clean-up-and- abatement orders had not been issued for 13 sites, although the leaking tanks had been reported from 2 to 11 years ago and these orders were a prerequisite to assessing penalties; (ii) for 19 sites where clean-up-and-abatement orders were issued, the owners or operators had not complied with the orders and were not penalized; and (iii) for five sites where clean-up-and-abatement orders were issued and penalties were assessed, the penalties were inadequate. Details on the results of our review of the 37 38 ------- leaking tank sites and related enforcement activity is provided in the following paragraphs. One-Third Of Recalcitrant Owners Ignored In California, enforcement action procedures typically follow three phases: • A notification letter, which lets an owner or operator know of its responsibilities in cleaning up a leaking tank site; • A clean-up-and-abatement order, which includes deadlines for key actions, such as preliminary site assessments and work plans; and • A notice of violation, which can include a penalty assessment. Under these procedures, an owner would generally not be considered for a penalty assessment unless a clean-up-and- abatement order was issued, and the owner or operator failed to comply or comply timely with the deadlines in the order. Our sample of sites identified 13 instances where a clean-up-and- abatement order had not been issued even though the leaking tanks had been reported at these sites for 2 to 11 years. We found that the local agencies and regional boards were reluctant to issue clean-up-and-abatement orders. In fact, the three local agencies we reviewed have never issued a clean-up-and-abatement order. We consider this to be a serious problem, since it extends the time of site clean-up and allows the human health and adverse environmental impacts to continue. Our review of the leaking tank sites at the Aloha State Flowers and Appollo Service Station locations illustrate the general reluctance to initiate enforcement actions and related penalties in California. Aloha State Flowers, Redwood City. A leaking tank causing suspected groundwater contamination was discovered at this site in 1986. To date, neither the local agency or the San Francisco Bay Regional Board have issued a clean-up-and-abatement order to the owner of this site. Our review of the regional board's case file showed that, during a March 11, 1986 tank removal, gasoline was found in shallow groundwater at the site. Under California's Administrative Code, a tank owner/operator is required to report the following information, within 5 days of detecting such a leak: • the results of investigations to determine the extent of soil and groundwater contamination; and 39 ------- • how the released hazardous substance and affected soil and groundwater were disposed of. The code also requires the owner/operator to report the status of ongoing investigations and clean-up actions every 3 months. There was no evidence in the regional board's case files indicating that the owner reported either the results of any investigation of the leak, or how the released substance was disposed of. The case file did contain a notation that surrounding contaminated soil was probably removed from the site sometime between 1986 and 1990. However, it did not discuss the basis for this conclusion, indicate what was done with the hazardous soil, or further mention groundwater contamination concerns. Between 1986 and 1990, neither San Mateo County (the local agency), or the regional board took any enforcement action at the site. In October 1990, San Mateo County finally issued a notification letter to the owner advising of the need to investigate the impact of the leaking tank on the groundwater. When the county did not receive a response to the letter, it referred the case to the regional board. The date of the referral was not documented in the records. A year after the county's notification letter, in October 1991, the regional board advised the owner that it was handling the case. As of the date of completion of our field work, the owner had not responded to either the county or the regional board's efforts to make contact. However, the regional board had not issued a clean-up-and-abatement order or notice of violation. Consequently, over six years after discovery of the leaking tank, the owner has not been required to demonstrate that the site has been cleaned up, nor have any penalties been assessed to encourage the owner to be responsive to the regional board. Appollo Service Station, San Carlos. This leaking tank site was identified in December 1981 during a utilities excavation. The utility company noted that "the bell hole began filling with gasoline when we were approximately 4 feet deep." Although the extent of the subsequent clean-up activity at the site was not documented in the site case file, the owner, in December 1984, reported to the San Francisco Bay Regional Board that the site was cleaned up. However, the new owner of the site notified the regional board, in a November 3, 1987 letter, that the previous leaking tank problem had not been corrected. It noted that gasoline had been found in one of the monitoring wells at the site. The letter further described how, in the current owner's view, the gasoline was from old tanks. At that time, the regional board did not take any enforcement action. In September 1990, nearly three years later, the previous owner was sent a notification letter of its responsibility to clean-up the site. There was no subsequent information in the regional board's files indicating it had any current information on the extent of environmental contamination 40 ------- at this site. However, as of the date of our audit, the regional board has not taken further enforcement action such as issuing a clean-up-and-abatement order or a notice of violation assessing penalties. Clean-Up-And-Abatement Orders Not Timely Or Enforced Of the sites reviewed, we found 19 sites where clean-up-and- abatement orders were issued, but not complied with by the owner or operator. Although these orders were generally issued several years after the owner or operator had failed to clean-up the site, no enforcement action to assess penalties for noncompliance were taken. We attempted to calculate what the minimum and maximum penalty would be for the 19 sites where the orders were not complied with. For 16 of the sites, the files did not contain sufficient information to make the calculation. For the remaining three sites, we determined that minimum and maximum penalties that could have been assessed ranged from $2.2 million to $22.3 million as shown in the following chart. Maximum and Minimum Penalties for 3 Sites (Actual Penalty = $0) Millions Circle Marina A-1 Gas Mobil A discussion of two of these three sites with the highest potential maximum penalties are discussed below. Circle Marina Car Wash. Long Beach. A leak in the tank piping at this site was discovered sometime in 1985. An initial investigation found high levels of gasoline and solvents dissolved in the groundwater, floating in a bubble on the groundwater (called free product), and in the surrounding soil. In 1986, the owner removed some of the free product from the groundwater. In 1987, free product was again detected by monitoring wells. At that time, the free product thickness varied from 4 to 7 feet. 41 ------- On June 3, 1988, over three years after the leak was initially found, the Los Angeles Regional Board issued a clean-up-and- abatement order which required the owner to: • Immediately remove the free product, with a quarterly report due on June 30, 1988; • Submit a site assessment plan by June 20, 1988; • Submit a site assessment report, to include a site characterization report, 60 days after the approval of the site assessment proposal; and • Submit a remedial clean-up plan 30 days after the acceptance of the site assessment report. By November 1989, the owner had removed three tanks and 315 tons of soil from the site. However, satisfactory action to comply with all requirements of the order had not been taken. In November 1990, a regional board staff member recommended that the owner be penalized because: The site has been idle...The car wash owners have consistently failed to respond to the staff's request for free product removal and full plume definition...To date, no site assessment to help plume definition has been submitted and the free product recovery was not continued. However, no penalty was assessed. The site assessment plan was not submitted until December 24, 1990, nearly 2% years after the original due date in the order. At this time, the regional board could have assessed a penalty ranging from $1.3 million to $13.5 million, calculated as follows: Clean-up-and-Abatement No. of Days in No. of Order Deadline (Site Violation as of Leaking Penalty4 Assessment Plan) 02/28/92 Tanks Minimum Maximum 06/20/88 900 3 $1,350,000 $13,500,000 Apparently, the regional board later authorized the delay; however, the files did not document the board's reasoning for the delay, or discuss why penalties were not assessed for the delay. At the time of our review in February 1992, the site assessment report also had not been submitted, although it was due by February 15, 1991. The files did not explain the reason for this extended delay without further enforcement action, including 4The minimum and maximum penalties per the California Health and Safety Code, Division 20, Chapter 6.7 are $500 and $5,000, respectively, per day per tank. 42 ------- penalty assessments. We did notice that the owner asked for a one-month extension until March 15, 1991. The owner explained that debris in the wells had slowed the free product removal. The regional board granted the one-month extension. However, the file shows that the owner requested another extension on March 13, 1991, but the regional board denied this extension. Considering the penalty authorities available, we estimated the minimum and maximum penalties that could have been assessed for the failure to submit the required site assessment report to be between $525,000 and $5.2 million, calculated as follows: Clean-up-and-Abatement No. of Days in No. of Order Deadline (Site Violation as of Leaking Penalty Assessment Report1 02/28/92 Tanks Minimum Maximum 3/15/91 350 3 $525,000 $5,250,000 In summary, the leak at this site was known for the last seven years, and an apparent groundwater or soil contamination problem continued to exist. The regional board did not aggressively pursue enforcement of its clean-up-and-abatement order for the site, nor has it assessed penalties for noncompliance against the owner. In our opinion, the assessment of penalties is necessary to affect acceptable clean-up action by the owner of this site. A-l Gas Station, Redwood City. The local fire department first discovered a leak at this site in early 1984. In December 1984, San Mateo County required the owner to take samples to determine the soil and groundwater contamination problem at the site. The samples, taken in April 1985, showed the soil and groundwater at the site was highly contaminated as shown below: (Parts Per Billion) Substance Actual Level Target Level Gasoline (in Soil) 250,000 100,000 Benzene (in Water) 39,000 0 In July 1985, a county inspector found 18 inches of floating gasoline in one of the monitoring wells. The regional board's case files indicated that, although a clean-up-and-abatement order was not issued, the county gave the owner until August 1, 1985 to submit a work plan for extracting the floating gasoline. The owner did not submit the required work plan or remove the gasoline. However, no additional action was taken by the county until October 1989, or over four years later. In October 1989, the county again requested a work plan for removing the floating product and defining the contaminant. 43 ------- A work plan was finally submitted by the owner in March 1990, almost five years after it was first due. However, during this period, the county had not issued a clean-up-and-abatement order or assessed any penalties against the owner was for this delay. The County, with assistance from the San Francisco Bay Regional Board, approved the work plan, but the owner did not comply with the work plan. In July 1990, after a meeting with the owner, the regional board, although not issuing a clean-up-and-abatement order, directed the owner to submit a report summarizing all work conducted to date. The report, due by August 1, 1990, was submitted six weeks late. However, no action was taken to assess a penalty for this delay. In a October 11, 1990 letter, the regional board requested that the owner provide a time schedule for the following by October 26, 1990: • the installation of an acceptable gasoline removal system; • the submission of a technical report defining the extent of the contamination; and • the submission of a final report documenting implementation of a final site remediation plan. When the owner did not submit the requested time schedule, the regional board finally issued a clean-up-and-abatement order. This order, dated April 15, 1991, set deadlines for the items included in the October 11, 1990 letter. The first such deadline was June 1, 1991. In July 1991, the regional board issued a notice of violation because the owner failed to meet the deadlines in the clean-up- and-abatement order. However, the notice of violation did not include any assessed penalty. In August 1991, the owner claimed it was financially unable to clean-up the site. Although, the regional board did not relieve the owner of its site clean-up responsibility, it did not assess any penalty on the owner for failure to comply with the clean-up-and-abatement order. Considering the penalty authorities available, we estimated that the minimum and maximum penalties which could have been assessed ranged from $270,000 to $2.7 million, calculated as follows: Clean-up-and-Abatement No. of Days in No. of Order Deadline (Site Violation as of Leaking Penalty Assessment Report) 02/28/92 Tanks Minimum Maximum 06/01/91 180 3 $270,000 $2,700,000 44 ------- Penalties Assessed Are Insignificant For five of the sites we reviewed, penalties were assessed by regional boards for not meeting deadlines under clean-up-and- abatement orders. However, the amounts were a small fraction of what could have been assessed. Only $226,540 in penalties was assessed relating to the sites, while we calculated that total minimum and maximum penalties could have ranged between $989,000 and $10.4 million under available penalty authorities. INSIGNIFICANT PENALTIES ASSESSED Under Five Clean-up Orders $6,000,000 $5,000,000 $4,000,000 $3,000,000 $2,000,000 $1,000,000 $0 Nyack Konocti Consolation P&M Conoco Maximum Penalty Minimum Penally Actual Penalty $1 ,040,000 $52,000 $20,000 $1,125,000 $112,500 $15,000 $1 ,275,000 $127,500 $14,040 $1 ,820,000 $192,000 $40,000 $5,050,000 $505,000 $137,500 [Actual Penalty ffl Minimum Penalty H Maximum Penalty It should be noted that the regional board's files did not provide sufficient information for us to evaluate the factors considered describing the basis for penalty assessment calculations for these sites. However, we concluded that the penalty amounts assessed appeared to: (i) be less than the cost of cleaning up the site; (ii) lack any amount for the economic benefit of noncompliance; and (iii) be well below the state's minimum penalty amounts. It was also noted that the regional boards' enforcement practices were contrary to the goals of EPA's Enforcement Policy No. GM-21 which requires an enforcement approach that provides a deterrent effect and a swift resolution of environmental problems. The policy provides that: If a penalty is to achieve deterrence, both the violator and the public must be convinced that the 45 ------- penalty places the violator in a worse position than those who have complied in a timely fashion...Moreover/ allowing a violator to benefit from noncompliance punishes those who have complied by placing them at a competitive disadvantage. This creates a disincentive for compliance. For these reasons, the penalties generally should, at a minimum, remove any significant economic benefits resulting from the failure to comply with the law. Further discussion of our review of the five sites that had clean-up-and-abatement orders and penalties assessed by regional boards follow. San Francisco Bay Regional Board. For the sites we reviewed, this regional board had assessed a penalty under only one site (Consolacion). Although the basis for the board's penalty calculation was not documented, the penalty amounted to only $14,040. We calculated that minimum and maximum penalty amounts ranging from $127,500 to about $1.3 million could have been assessed. The penalty amounts were calculated using the 51 days of violation, as determined by the regional board, for five leaking tanks, at the minimum and maximum penalty amounts of $500 and $5,000, respectively, per tank per day. Central Valley Regional Board. For the sites we reviewed with a clean-up-and-abatement order, this regional board had assessed penalties at four sites. The penalties totaled $212,500 and ranged from $15,000 to $137,500. We concluded that these penalty amounts were not determined in accordance with an aggressive enforcement policy. Our conclusion is supported by reviewing the conditions relating to the site involving the largest penalty assessed by this regional board from the four we reviewed. The regional board assessed a $137,500 penalty against Conoco. However, we calculated that the minimum and maximum penalty assessed could have ranged from $505,500 to $5 million based on the available penalty authorities. Further, as shown in the details of the case that follow, the Conoco fine was not assessed by the regional board until nearly three years after the clean-up-and-abatement order was issued. Conoco notified the responsible local agency, Sacramento County, of a possible soil contamination in Citrus Heights on March 20, 1985. On November 4, 1985, Conoco reported that two out of the three underground tanks had leaked. Between January and May 1986, the leaking tanks were removed, and Sacramento County requested that the regional board assume responsibility for overseeing the site clean-up. On August 10, 1987, the regional board issued a clean-up-and- abatement order. As part of this order, the regional board required a final remediation plan. This plan required Conoco to set deadlines for installing wells and associated systems and 46 ------- required it to report on its progress. The plan was approved on May 4, 1988, and the first deadline was October 31, 1988. Almost two years later, Conoco had not met the deadlines included in the remediation plan, or otherwise attempted to clean-up the contaminated soils at the site. Consequently, in March 1990, the regional board staff proposed that a $252,500 penalty be assessed against Conoco for violating the abatement order for 505 days. The regional board's executive staff later cut the assessed penalty in half, to $125,500, and added $12,000 for the board's staff time spent working on the case, for a total of $137,500. The case files did not explain the regional board's rationale for reducing the penalty. The penalty was assessed against Conoco on June 21, 1990. This was significantly less than the minimum and maximum penalties of $505,500 to $5 million which could have been assessed. In making our calculation, we used the 505 day violation period determined by the regional board for two tanks at the minimum and maximum penalty amounts of $500 and $5,000 per day per tank, respectively. CAUSES OF INEFFECTIVE ENFORCEMENT We concluded there were several reasons why the state did not have an effective enforcement program under the LUST program. These included: • The CAs issued by the Region did not require the state to establish an effective enforcement program, nor hold the state accountable for an effective enforcement program; • The Region and the state had not emphasized the importance of aggressive enforcement actions, or established procedures for monitoring enforcement actions with regional boards and local agencies; • State enforcement policies were not always consistent with EPA policy, nor disseminated to regional boards and local agencies; • The regional boards were understaffed and could not handle the large number of enforcement actions; • Local agencies lacked legal expertise to pursue complex environmental cases; • Outside influences sometimes adversely affected enforcement actions; and • The state had not authorized the use of "field citations" under the program. 47 ------- The first two causes were discussed at the beginning of this chapter. Additional comments on the other causes are provided below. State Enforcement Policies Were Not Adequate Although the Region delegated its enforcement responsibilities to California, it did not require the state to adopt enforcement guidance which was consistent with EPA policy. For example, the Region did not require the state to adopt guidance for computing penalties which considered the economic benefit of noncompliance. Also, state policy was inconsistent with EPA policy regarding maximum daily penalty amounts. The state's maximum daily penalty amount of $5,000 was less than the maximum Federal penalty of $10,000 provided for under SARA (see Chapter 5 of this report for additional discussion of this area). In addition, the state had not provided guidance to the regional boards and local agencies on how penalties should be computed or assessed. Regional Boards Were Understaffed The state has given regional boards significant responsibility for initiating LUST enforcement actions in the state. However, the state has not provided the regional boards with the necessary resources to carry out their responsibilities. The regional boards advised us that they had sufficient staff to aggressively enforce only a handful of LUST sites. In this respect, the state did not provide regional boards with any LUST CA funds for enforcement, although they were responsible for over 43 percent of the clean-up sites. The enforcement problems associated with understaffing were compounded by the fact the local agencies were referring most of the difficult LUST enforcement cases to the regional boards for action. The above conditions have resulted in an unmanageable workload at the regional boards. Although the state reported that it expended only 59 percent of the LUST CA funds received from FY 1987 to FY 1991, it had not made any additional funds available for enforcement activities at the regional board level. We attributed this condition to a general lack of interest in establishing an effective enforcement program. Referral Of Cases To Regional Boards. To determine what happens when clean-ups were referred from a local agency to a regional board, we reviewed the four cases that San Joaquin County had referred to the Central Valley Regional Board for enforcement. We found that the regional board had not taken adequate enforcement action on three of the four cases. Specifically, the regional board: (i) had not taken any action on two cases since they were referred; and (ii) had sent out a letter on one case, but had not penalized the responsible party for not meeting the deadlines contained in the letter. The latter case pertained to a leaking tank site on School Street in Lodi, California. 48 ------- San Joaquin County referred the School Street case to the regional board in December 1990. It was September 1991, or nine months after the referral, before the regional board contacted the responsible party. Although the regional board requested that the responsible party submit a preliminary site assessment by October 30, 1991, the responsible party did not meet the deadline. As of the date of our review in February 1992, the regional board had not initiated further enforcement actions or assessed penalties for missing the deadline. We attribute these untimely and limited enforcement actions, in part, to regional board staffing shortages for enforcement activities. Lack Of Legal Expertise Defers Enforcement Action We also found that aggressive enforcement actions were not being taken by local agencies. For the most part, the local agencies were referring cases to regional boards, where, typically, no action was being taken. According- to local agency personnel, they did not believe they had the legal expertise necessary to initiate enforcement actions under the LUST program. In an October 1991 Underground Storage Tank Program Imple- mentation Survey, the state found that most local agencies did not receive adequate assistance from their legal counsel. Of 69 respondents, 24, or 35 percent, felt that legal support was inadequate. Local agency personnel informed us that support was inadequate because attorneys: (i) did not have experience in environmental law; and (ii) had too many cases already in process. One success story, however, occurred in Alameda County. The District Attorney in Alameda County has been very successful in prosecuting leaking tank site cases. It is our understanding that the Region has plans to conduct enforcement training for local agencies, drawing on the experience of Alameda County. We concur with the Region's proposed actions, and suggest that the Region carry out its proposed training plans as soon as possible. Outside Interests Can Affect Enforcement Decisions We noted a leaking tank site case where it appeared a LUST enforcement action was not taken because of who owned the site. In this case, the owner was very influential in the community and a member of the Grand Jury. A discussion of the circumstances relating to this site were as follows. In January 1990, a land owner completed soil borings as a prerequisite to the sale of the property. The borings found a leaking tank that had contaminated the soil. In April 1990, the county, which observed the boring, told the owner to complete further investigation of the site by May 11, 1990. On May 18, 1990, the owner informed the county, that he had not investigated the site by the deadline, and that site clean-up would not occur 49 ------- for a "couple" of years. However, the county did not initiate any enforcement action against the owner at that time. In October 1990, a further review by the county showed that the leaking tank may have contaminated groundwater at the site, and that further investigation was necessary. However, the county did not require the owner to perform the investigation. Instead, the county attempted to refer the case to the regional board. In its referral, the county commented that "the owner is a very influential in the community and a member of the Grand Jury". The regional board advised that it did not have the resources necessary to enforce the clean-up. Accordingly, the county retained the case. However, as of the date of our field work, the county had not initiated any enforcement action at this site. While this was the only example of outside interests influencing enforcement actions that we noted, we were advised by regional board staff that often their boards were reluctant to assess penalties. They explained that the board members normally had strong business ties to the community and were reluctant to recommend penalties. We recognize that conflicts of interest and outside influences cannot be eliminated. However, the establishment of a uniform penalty guidance policy by the state would assist in alleviating some of these types of influences. Lack Of Field Citation Authority Through OSWER Directive 9610.14, EPA has developed a "field citation" concept as part of its underground storage tank enforcement program. A field citation is similar to issuing a parking ticket in that it is written on the spot and does not require extensive documentation. It allows the inspector, during a site inspection, to immediately assess a fine, usually $100 per violation. Field citations were being used in Region 10 for enforcement of underground storage tanks regulations, such as requiring tank permits and monitoring equipment. According to Region 10 personnel, field citations were very effective in obtaining swift compliance with environmental laws and regulations. In our opinion, the field citation concept could be extended to the LUST program. This would give regional boards and local agencies a means to easily and quickly penalize leaking tank site owners or operators who violate enforcement actions. Such immediate penalties could help promote compliance, and possibly reduce the number of referrals from local agencies to the regional boards. RECOMMENDATIONS We recommend that the Regional Administrator: 50 ------- 1. Revise the California CA to include specific tasks for establishing and maintaining an effective statewide enforcement program, which complies with all EPA requirements. The CA should not only incorporate specific enforcement requirements for the state, but also for the regional boards and local agencies. In addition, the CA should hold the state accountable for an effective statewide enforcement program by making future CA funding contingent on the establishment of such a program. 2. Monitor the quality and quantity of enforcement actions initiated within the state to assure that the enforcement program is effective and being carried out according to EPA policy. To assist the Region's monitoring process the following procedures, as a minimum, should be addressed: a. Including a more in-depth review of the enforcement actions on a statewide basis. In this respect, special attention should be devoted to monitoring the state enforcement actions taken against significant violators to determine whether the state is complying with EPA enforcement policy. b. Requiring the state to establish a tracking system for all enforcement actions, including those taken by its regional boards and local agencies. c. Requiring the state to monitor enforcement actions taken by its regional boards and local agencies for compliance with state policy. 3. Require the state to adopt enforcement program guidance which requires: • Timely enforcement actions based on established deadlines. • Clean-up-and-abatement orders that are followed with assessed penalties. • Penalty assessments that are calculated in accordance with EPA policy. 4. Provide training to local agency attorneys to increase the quantity and quality of LUST enforcement actions. 5. Implement a "field citation" program for the LUST program that can be used by the state, its regional boards, and local agencies. REGIONAL RESPONSE AND PIG EVALUATION Regional Response. The Region provided the following comments on the findings and recommendations. 51 ------- Overall Comments. The Region stated that: California's program, and indeed the national LUST program, was modelled to some extent after Santa Clara County's LUST program, the first to be established in the nation in response to leaks from solvent tanks in the Silicon Valley. Recognizing that a local agency is most effective in responding to the vast number of sites in California, the State in 1983 mandated that the program be implemented by local agencies, not the Regional Boards or State. While this 'franchise' concept makes coordination a challenge, EPA acknowledged the effectiveness of the program and modelled its program on the same franchise approach. EPA also developed guidance early on emphasizing voluntary compliance as a cost-effective way to achieve environmental benefits. Regional Response To Recommendation 1. The Region stated that it generally agreed that: California's enforcement of the LUST program needs improvement, particularly in the area of consistency through California, including cities, counties, and Regional Water Quality Control Boards." However, the Region cautioned that: ...it must be noted that EPA OSWER Directive 9610.11 encourages voluntary compliance as the main enforcement tool, stating that 'to encourage voluntary compliance...the least resource-intensive action should be taken first.' California has abided by this guidance, and pursued a policy of encouraging voluntary compliance, which has resulted in significant levels of compliance. We are currently reviewing California's proposed compliance, monitoring and enforcement policy and procedures for state program approval, and will ensure through this mechanism that the enforcement program remains consistent with Federal requirements. We agree that the workplan for California should continue to include milestones and other tools to monitor the effectiveness of a statewide enforcement program. Currently, detailed information regarding site status by Region and county are reported to the EPA. We are currently sponsoring enforcement training classes being given throughout the state, and targeted towards local agency staff, Regional Board staff, and legal staffs of the LIAs [Local Implementing Agencies]. In addition, we are sponsoring Leak Detection Inspection Training for local agencies and Regional Board staff. 52 ------- We are initiating oversight in the UST program through local agency visits by the State, that will result in incidental benefits to the LUST program. Please note that a major fact in driving the compliance program is the State Cleanup Fund, which currently has a balance of $110,000,000. In order to be reimbursed or forwarded funds for cleanup, an owner or operator must demonstrate compliance with all applicable regulations. If they have applied for Fund reimbursements, but are not in compliance, the State issues an informal enforcement letter requiring the applicant to come into compliance within 60 days or be found not eligible for up to $990,000 in funds. For owners and operators who are recalcitrant, the State will follow up with further enforcement. We recommend that we continue to guide the State by: 1) reviewing the state program approval documents, specifically the compliance monitoring and enforcement polices and procedures; 2) negotiating the FY94 grant to include a plan for implementing the enforcement policies and procedures, and; 3) funding or assisting in setting up further training courses as required. OIG Evaluation. The Region's response is acknowledged. However, it did not adequately addressed the latter part of this recommendation requiring the Region to "hold the state accountable for an effective statewide enforcement program by making future CA funding contingent on the establishment of such a program." The Region instead commented that it would continue "to guide the state" through (i) state program approval; (ii) an implementation plan for enforcement procedures; and (iii) funding and assisting in training courses. We do not agree that "guiding" the state will hold it accountable for its ineffective statewide enforcement program. We further disagree with the Region's conclusion that voluntary compliance has resulted in significant levels of compliance in California. The state Office of Program Evaluation wrote, in an August 23, 1992 briefing paper, that "83% of the currently known tank leak sites have not been closed. Some regional boards have boxes of unreviewed, backlogged sites." Further, about 97 percent of the sites reviewed in our audit had inadequate enforcement action taken. These facts do not demonstrate that there have been significant levels of voluntary compliance, or that an effective enforcement program is in existence. The Region also did not comment on our recommendation that LUST funding should be tied to an effective enforcement program. However, we also noted that the state's Office of Program Evaluation also concluded (in the aforementioned briefing paper) that, as a potential solution for problems with local agencies in the enforcement of the UST/LUST program, the state should "tie funding to performance." 53 ------- Regional Response To Recommendation 2. The Region agreed to monitor the quality and quantity of enforcement actions and stated that: Although we agree it is important to monitor the quantity and quality of enforcement actions, we believe the more fundamental issue is compliance. When we find non-compliance, we agree that it should be monitored and tracked. We believe a better measurement of enforcement is the number of clean-ups completed or progressing rather than the amount of funds collected in penalties. We recommend working with the State to examine current or planned efforts on those sites where cleanups have not been initiated or completed. We will work with the State Board to ensure that there is a plan of action for those sites not closed or in progress of being cleaned up. We believe in-depth review of the enforcement actions of a state as large as California is the role of the State and Regional Boards. To that end, we will include in FY94 grant guidance for the State to conduct audits/reviews of Regional Boards and local agency enforcement efforts to provide a better compliance picture for the State. We agree that the State should track and monitor enforcement actions. The Regional Boards do, and should continue to play an oversight role with the locals, and encourage enforcement where it would ensure compliance. We recommend addressing these issues in our FY94 workplan, and pending an enforcement review of selected local agencies on regarding leak detection, will address this role in future cooperative agreements and workplans. , OIG Evaluation. The Region's response represents a positive initial action. However, we do not agree that an in-depth review of the state's enforcement actions should only be a role for the state and regional boards. On the basis of the ineffective enforcement program in the state, the Region needs to play a major continuing role in reviewing the adequacy and timeliness of the state's enforcement actions. Regional Response To Recommendation 3. The Region partially agreed with this recommendation, by stating that it will ensure that the enforcement guidance requirements are met. However, it did not agree with recommendation 3.a. which would require the state to carry out timely enforcement actions. It also did not agree with recommendation 3.c. which required the use of the EPA penalty calculation guidance. Specifically, the Region responded that: 54 ------- The State carries out timely enforcement actions on high priority sites or where owners and operators have been recalcitrant. However, given the size of the universe and the limited funding of the program, there will always be lower priority sites where no action can be taken for a longer period of time. Since the program is being funded at both the State and Federal levels far below the necessary funding level to run a State-wide program, there is no way in the foreseeable future that a uniform compliance, enforcement and monitoring policy and procedures manual can address all sites. Instead, we expect it to focus on higher priority sites. Through the program approval process, we will be reviewing California's proposed compliance, monitoring and enforcement policies and procedures, and ensuring that the enforcement guidance requirements are met. Decisions on penalty amounts are influenced by many legitimate factors beyond the EPA penalty policy. Settlements for less than calculated amounts consistently occur in all types of enforcement and third party cases. Agency resources, RP economics, deterrence potential and the strength of the case are all considerations to be taken into account. It is universal not to assign a maximum penalty to any case but the most egregious, and penalties are not intended to be based on the maximum penalty authority. OIG Evaluation. We disagree with the Region's comment that the state is carrying out timely enforcement actions on high priority sites. All of the 38 sites reviewed in our audit were included on the state's top priority category, a leak affecting groundwater. However, we found the state did not take adequate enforcement action for 37 of the 38 sites. We agree that the priority system should govern which sites receive oversight funding, including enforcement actions. However, the state does not have a priority system that is consistent with Federal requirements. Further, the state's Office of Program Evaluation briefing paper recognized that the established priority system was not working and commented that: Despite the existence of State Board Resolution 87-73 directing the water quality prioritization of tank sites, property transfers, rather than water quality, appear to be driving the priority system. Those wanting to sell or develop property are motivated to cleanup and pressure the oversight agencies to expedite their projects. There are not enough resources to oversee property transfers and push recalcitrant. Property transfers generally take precedence, recalcitrant 'benefit' by delay or nonaction. 55 ------- Regarding penalty calculations, we disagree that EPA penalty guidance should not be followed. EPA penalty guidance does, in fact, address the "legitimate factors beyond EPA penalty policy", such as "agency resources, RP [responsible party] economics, deterrence potential and the strength of the case." Further, the penalty guidance in OSWER Directive 9610.12 mentions that all these variables (and others) should be used in penalty calculations. In our opinion, the EPA penalty guidance must be adapted for the state's program to be at least as stringent as the Federal requirements. Regional Response To Recommendation 4. The Region agreed and noted, "We are currently offering three enforcement training classes, and will continue to do so as they are needed. In addition, we [are] sponsoring District Attorney training in October 1992." Regional Response To Recommendation 5. The Region agreed to implement a field citation program and stated that: We are working with the State Water Resources Control Board [SWRCB] to identify one local agency that, in concert with the SWRCB, can implement a pilot field citation program. Please note, however, that a field citation program is more appropriate for the preventative aspects of the program rather than the LUST program. However, we see the value of the field citation program and we are pursuing a pilot program under the UST FY93 Program Grant. 56 ------- CHAPTER 4 MONITORING CALIFORNIA'S LUST PERFORMANCE The Region was not effectively monitoring the state's performance under EPA's LUST program and had not established an adequate management system for determining progress being made to clean-up leaking tank sites. The Region had not evaluated: (i) the use of about $7.3 million, or 75 percent of the LUST CA funds used by California between 1988 and 1990; (ii) the progress the state was making cleaning up its leaking sites; or (iii) information included in state generated clean-up status reports before forwarding this information to EPA Headquarters. We concluded that these conditions contributed to serious problems with the state's LUST program. These problems included the need to implement an effective state priority system for site clean-ups and enforcement actions, as discussed in Chapters 2 and 3 of this report. Weaknesses in the Region's monitoring and management systems were attributed, in part, to the fact that the Region did not include specific requirements in the state's CAs for performing critical activities in the areas of prioritizing site clean-ups and enforcement. We also determined that the state-generated information transmitted by the Region to EPA Headquarters overstated the site clean-up progress being made in California. Since this information was being used by EPA to make nationwide funding decisions and to report the status of the LUST program to Congress, it was important that the status information be accurately reported. BACKGROUND The 1987 LUST CA between the state and the Region provided for the state to establish a Local Oversight Program (LOP) to distribute Federal funds to ten counties within the state. This distribution was referred to as franchising. By 1991, the LOP had been increased to 21 of the 58 counties in the state. The 21 counties were to use CA funds to monitor leaking tank site clean- ups in their respective geographical areas. Counties that are not franchised can oversee site clean-ups using their own funds, or can refer clean-up oversight to one of the nine State Regional Water Quality Control Boards (regional boards). The requirements for earning LUST CA funding are generally described in each year's CA and further detailed in an annual work plan that is included as an appendix to the CA. The Office of Solid Waste and Emergency Response's (OSWER) Directive 9650.10 contains EPA's guidance for LUST work plans. EPA requires the 57 ------- Regions to oversee state programs in order to ensure environmental protection through sound use of the LUST Trust Fund. The Regions are to make yearly evaluations of state programs, including comparing work plan requirements to accomplishments reported by states. STATE PROGRAM DID NOT FOCUS ON CRITICAL LUST ACTIVITIES The state's program performance on the most critical aspects of its LUST program was not being effectively evaluated by the Region. Although California's CAs gave the appearance of including the six "core" LUST activities identified as critical by EPA, a close review of the related work plans disclosed that the state committed to performing only two of them. The work plan is to be. used for evaluating a state's performance. According to OSWER Directive 9650.10, the state work plans are to include six critical, or "core", LUST program activities. The purpose of this requirement is to ensure the most critical aspects of EPA's program are carried out by the states receiving LUST funding. The six core activities include: (i) a priority system; (ii) enforcement policies and procedures; (iii) cost recovery policies and procedures; (iv) a site-by-site tracking system; (v) public participation procedures; and (vi) quality assurance practices. Our review of the California LUST CAs for FYs 1988 to 1992 disclosed that there was a general description of the core activities. However, the work plan appendix, which identified the specific tasks the state was committed to perform, did not incorporate four of the six core LUST activities, including tasks for the priority system and enforcement. In our opinion, the lack of work plan tasks relating to the LUST priority system and enforcement procedures directly contributed to the significant problems noted in our review of these areas (see Chapters 2 and 3 of this report). We believe the CAs' lack of focus on four of the six core LUST activities was attributable to the following: • The state, rather than the Region, drafted its own CAs. Thus, the state essentially determined the activities that would be incorporated into its work plan. It appeared that the state included activities that could be most easily performed; and • The state focused most of its efforts on recovering the funds that local agencies spent under the LOP overseeing leaking tank site clean-ups. While cost recovery is a core LUST activity, and California apparently had one of the best 58 ------- cost recovery programs in the nation, emphasis in this area resulted in other critical core LUST activities not being addressed. REGIONAL EVALUATIONS WERE INCOMPLETE While the Region performed annual evaluations of the state's LUST program, we found they were incomplete. The Region did not evaluate the use of about 75 percent of the LUST CA funds expended by California between 1988 and 1990. As a result, the Region did not have a good basis for determining if the state spent the LUST CA funds effectively; or if reasonable progress was being made cleaning up leaking tank sites. According to OSWER Directive 9650.10, Regions are supposed to make a yearly evaluation of state programs to: • Ensure adequate environmental protection through sound use of the LUST Trust Fund; • Describe the progress of programs on a regional scale; and • Identify the successes and problems encountered in state programs. In our view, the Region's evaluations were not accomplishing these objectives. Our review disclosed that neither the Region, the state, or the state's regional boards had formally evaluated the performance of the local agencies. Such an evaluation was important since the 21 local agencies expended approximately $7.3 million, or 75 percent, of the LUST CA funds provided by EPA between FY 1988 and 1990, as shown in the following chart. Total LUST Expenditures Fiscal Years 1 988, 1989. and 1990 State Board $0.9 million Regional Boards $1.5 million Local Agencies $7.3 million 59 ------- We also determined that the Region did not make site visits to evaluate the local agencies, even though the majority of site clean-up oversight efforts were occurring at this level. In our opinion, field site visits are essential to identify successes, problems, and possible solutions. The site visits could also be used as a means of verifying the program results information which the state provided to the Region. MONITORED The Region was not monitoring the progress of leaking tank site clean-ups in California. As of the date of our audit, there was a large backlog of leaking tank sites in California, and the backlog was continuing to increase. However, the Region was not adequately using one of the primary management reports available to assist in evaluating California's LUST program. The state prepared quarterly State Activity Reports (STARS) which identified the number of: (i) confirmed leaking tank sites; (ii) sites where clean-up was in process; (iii) sites where releases were under control; and (iv) site clean-ups completed. Preparation of the STARS report is governed by OSWER Directive 9650.10 and subsequent clarification letters. We determined that STARS was not reviewed or tested for accuracy by the Region to measure the effectiveness of the state's progress. Instead, the Region merely transmitted the unreviewed STARS report to EPA Headquarters. According to the OSWER Directive, Regions were to utilize STARS reports when making annual state evaluations. In addition, the STARS reports were used by EPA's Office of Underground Storage Tanks to evaluate national and state programs and to report to Congress. Further, EPA Headquarters used the STARS reports to allocate LUST funds nationally. For example, in FY 1993, EPA Headquarters indicated that it was planning to distribute a $4 million, performance-based "bonus" pool. The pool was to be allocated on the basis of the number of LUST site clean-ups initiated as a percent of the total confirmed universe of leaking tank sites. The allocation was to be based on information included in the STARS report. Our review also disclosed that the STARS data reported by the state were inaccurate and key performance indicators were overstated, including one applicable to the number of site clean- ups initiated, by as much as 30 percent. Since the Region had not validated the accuracy of the STARS data, EPA Headquarters was receiving inaccurate performance data that may adversely impact conclusions regarding the status of the LUST program. This could lead to making status reports to Congress that overstate the number of site clean-ups initiated, or result in the incorrect allocation of LUST funds to California. 60 ------- STARS Information Not The Region did not use the STARS reports or supporting data to evaluate the state's progress or effectiveness in cleaning up leaking tank sites. The information in California's STARS report was based upon the state's computerized Leaking Underground Storage Tank Information System (LUSTIS) data base. LUSTIS was designed to meet the state's internal reporting needs. The LUSTIS information was input by the regional boards. Although the supporting LUSTIS information showed that the state was not effectively managing some high-priority cases, the Region did not consider the LUSTIS data when evaluating the state's performance. For example, the Region was not following up on the lack of clean-up action at high priority sites. To illustrate, the September 30, 1991 LUSTIS report showed two cases of leaking tank sites impacting drinking water, but that no clean-up action had been initiated. However, since the Region had not reviewed the LUSTIS information, the Region did not follow-up with the state to determine why no action had been taken on these cases. It should be noted that the March 31, 1992 LUSTIS report again reported that no action had been taken on these same two cases. STARS Report Significantly Overstates LUST Information We found that the STARS report significantly overstated information concerning the number of (i) leaking tank site clean- ups initiated, and (ii) leaking tank sites. These discrepancies were allowed to continue because the STARS information was not reconciled to the LUSTIS data base, and it was based on inaccurate information. Since the Region had not verified the accuracy of the STARS reports, the overstated information was transmitted to EPA Headquarters. It is important that STARS information be accurate because it is consolidated with STARS information from other states and used to report the status of the LUST program to Congress. Additionally, the STARS data are used to make nationwide LUST funding decisions. We reviewed California's STARS report dated December 31, 1991 and found the following problems. Number Of Clean-Ops initiated inflated. We found that the number of reported leaking tank site clean-ups initiated in the state was inflated by about one-third. The STARS reported 5,860 site clean-ups were initiated. However, the supporting LUSTIS information showed that only 4,459 clean-ups were initiated. The difference of 1,401 clean-ups, or 31.4 percent, represented a significant overstatement of the number of clean-ups initiated. This condition appeared to have occurred because some sites were counted more than once due to a change in the transaction code in the LUSTIS data, which was not corrected in the STARS. As time passed and more of the LUSTIS transaction codes changed, the number of clean-ups initiated reported in STARS became increasingly overstated. 61 ------- Unconfirmed Leaking Tank Sites Reported. Leaking tank sites that had not been confirmed were reported as confirmed leaking sites in STARS. This was a significant inaccuracy, since the number of tank sites verified or otherwise confirmed as leaking. We found the state assumed that all sites coded in the LUSTIS data base as "No Action" were confirmed leaks. However, according to regional board personnel, some unconfirmed sites were included in the "No Action" classification, and therefore, were improperly reported as confirmed leaks in STARS. Unregulated Leaking Tank Sites Reported. The number of leaking tank sites was also overstated because unregulated tank sites (i.e. above ground tank sites) and some unlocatable sites were included in STARS. The LUST funding is only to be used for underground tank sites regulated by Federal laws. Unregulated heating oil tank sites, farm tank sites, and above ground tank sites are ineligible and should not have been included in the STARS report. Our limited review of 10 selected sites purportedly impacting groundwater handled by one regional board and reported in STARS as underground regulated leaking tanks showed two instances of incorrect reporting: • One site was an above ground tank site, which was not part of the LUST program; and • One site could not be located at the address listed in the regional board's records. Because our review was limited, we cannot statistically project the number of overstated leaking tank sites being reported in STARS. However, if the overstatement is anywhere near the error rate found in our limited review, it could represent a substantial reporting problem. Use Of Outdated Information The latest STARS report we reviewed was based on data that was three months old. The December 31, 1991 STARS report was based on a September 30, 1991 LUSTIS summary report. However, STARS reported that the information was current as of December 31, 1991. State personnel stated that they did not have enough time to compile the STARS report, and were, therefore, forced to use old data. STARS Information Not Reconciled We found that the information included in the STARS report could not be reconciled with the supporting LUSTIS data base. The STARS report was produced using a computer program which rearranged data in the LUSTIS data base. However, state personnel had not documented how this process worked, or reconciled the differences between the two systems. As a result, 62 ------- significant inaccuracies, such as an overstatement of the number of site clean-ups initiated, were reported to EPA. The state initiated some corrective actions after we informed them of these problems. For example, the state established a new method of computing STARS performance measures to help eliminate sites from being counted more than once. In addition, the state initiated actions to purify the LUSTIS data base through additional reviews and staff training. However, we believe it is important for the Region to assure that the state's actions will result in reliable STARS information. To accomplish this, the Region should independently verify the accuracy of STARS information on a periodic basis. These verifications should include making site visits to responsible local agencies. RECOMMENDATIONS We recommend that the Regional Administrator: 1. Include all LUST core program activities identified by OSWER guidance in California's LUST CA work plans. 2. Establish procedures for evaluating the effectiveness of California's LUST program. In this regard, the procedures should include the state's use of all LUST CA funds provided, including those funds provided to agencies in the state's Local Oversight Program. 3. Expand the Region's annual year-end evaluation process to include site visits to local agencies receiving LUST CA funds. During the site visits, the Region should: (i) verify the accuracy of status reports; (ii) identify potential programmatic problems; and (iii) confirm program results reported by the state. 4. Assure that the STARS report reflects the actual status of California's LUST program by: (i) requiring periodic reconciliation with the LUSTIS data base; (ii) including the most current quarter's information in the STARS report; (iii) reviewing the accuracy of the STARS report before it is transmitted to EPA Headquarters; and (iv) holding the state accountable for any inaccurate data. REGIONAL RESPONSE AND PIG EVALUATION Regional Response. The Region provided the following specific comments to our recommendations. 63 ------- Regional Response To Recommendation 1. The Region agreed "that all LUST core activities [will] be included in cooperative agreements and workplans." Regional Response To Recommendation 2. The Region agreed and said: We have a procedure for evaluating the State's whole program, including the LUST program, and not limited to the Cooperative Agreements. We recommend that in order to evaluate the use of the State's use of the funds, future Cooperative Agreements will request the state to do performance reviews on Local Oversight Programs. In addition, we will use new tasks previously outlined in this document to monitor the effectiveness of the State's program. Regional Response To Recommendation 3. The Region agreed to "increase" the number of sites visits to local agencies, in order to provide assistance. The Region said that, in FY 1993, it will: ...conduct a few site visits and case reviews in order to meet this need, as well as continued reviews of selected site reports from State visits to counties. The Federal oversight function is to ensure that the State demonstrates compliance and ensures that cases get closed. Regional Response To Recommendation 4. The Region responded that: Reconciliation of the LUSTIS database and STARS is in the current workplan, and we will be assisting the State this quarter to identify problems. The problems of definition and interpretation in the STARS database are nationwide. OIG Evaluation. The Region's comments to recommendation nos. l and 2 are considered responsive to our recommended actions. With respect to recommendation no. 3, the Region's reply was not fully responsive to our specific recommendations to: (i) verify the accuracy of status reports; (ii) identify potential programmatic problems; and (iii) confirm program results during site visits. These issues must be addressed in the final determination process to ensure state reported program results are accurate and reliable. In regard to recommendation no. 4, the Region's response was considered incomplete, since it did not address our recommendations for: 64 ------- • Including the most current quarter's data in the STARS report; • Reviewing the accuracy of the STARS report before it is transmitted to EPA Headquarters; and • Holding the state accountable for any inaccurate data. Considering the importance of the STARS report in both funding decisions and reporting program status to Congress, we believe the recommended management controls are essential. 65 ------- This page Intentionally left blank. 66 ------- CHAPTERS STATE PROGRAM WAS NOT MOVING TOWARD TIMELY APPROVAL Although EPA has recognized a link between LUST Trust Funds and the Underground Storage Tank (UST) regulatory program, the Region has not successfully used LUST funds as an incentive to encourage California to obtain timely approval of its state program. The Region has awarded about $15.8 million in LUST CA funds to the state. However, we do not believe that the state has made reasonable progress toward getting its state program approved. Specifically, we found that: • The state has requested and received three time extensions to its deadline for submitting a draft state program to the Region for approval. These extensions have delayed submission of the draft program by more than three years. • Although the Region planned to incrementally approve each of the six required components of the state's program, none of the components had been approved. • The state had not yet submitted for approval three of the required program components, namely: the memorandum of agreement with EPA; the state's demonstration that its enforcement procedures were adequate; and a letter from the Governor requesting program approval. We concluded that the state had little financial incentive to submit its program for approval, since the Region has not made LUST CA funding contingent upon this approval, and there were no financial penalties for not having its program approved. The most obvious adverse effect of this situation in the LUST program is that the state's enforcement program was inadequate. As we discussed in Chapter 3 of this report, this has led to extended delays in initiating clean-up actions at leaking tank sites. We also noted that the other states (Nevada, Arizona, and Hawaii) in Region 9 do not yet have approved state programs. BACKGROUND SARA established a Trust Fund for both cleaning up leaking tank sites and enforcing clean-ups by owners and operators. According to the preamble to Volume 53, No. 185 of the Federal Register dated September 23, 1988, the LUST Trust Fund is just a short term solution to the problem of leaking tank sites. The long term solution is for states to have their own UST programs that prevent leaking tanks. The preamble states that: 67 ------- EPA, therefore, has made a link between the LUST Trust Fund and UST regulatory program to ensure that future contamination is minimized...a state's success in making reasonable progress toward submitting a completed application for state program approval may be grounds for increasing state access to the Trust Fund in FY 90 and thereafter. EPA realizes that 'reasonable progress' toward submitting a complete application will vary depending upon the status of the individual state program. EPA intends to develop criteria for measuring state progress, and will evaluate progress for each individual state... According to EPA's transition strategy, included in OSWER Directive 9610.5, the focus of EPA's program is to expedite state implementation of the national program. In this respect, states are allowed to administer and enforce state programs for underground storage tanks in lieu of the Federal program. EPA can approve a state's program if it: • Includes requirements that are no less stringent than the corresponding Federal requirements; and • Provides for adequate enforcement of program requirements. Because the long term goal of the program is to prevent leaks, EPA has recognized that LUST CA funding should be linked to a state's progress in getting state program approval. The idea is that an effective state program will prevent leaks, eventually eliminating the need for LUST CA funding. CALIFORNIA WAS NOT MAKING REASONABLE PROGRESS IN OBTAINING PROGRAM APPROVAL California has not demonstrated reasonable progress in getting its state program approved. EPA anticipated having state programs approved shortly after applicable Federal regulations became effective. According to EPA's transition strategy: When the Federal UST regulations become effective in early FY 1989, most states will be in the process of developing state regulations and beginning to assemble applications for program approval...Regions and states need to identify appropriate activities for each to undertake during the transition period between the effective date of the Federal regulations to the dates state programs are authorized by EPA to operate in lieu of the Federal program...The length of the transition period will vary by state, ranging from a few months to two years or more. In our opinion, the state has not made reasonable progress toward obtaining state program approval. It did not provide a schedule 68 ------- for submitting its state program components, such as laws and regulations, to the Region for approval until late in 1991, or about three years after the Federal regulations were effective. Further, the Region has continually allowed the state to extend its deadline for submitting a draft application for program approval, without any financial penalty, such as a reduction in its available LUST CA funding: • In FY 1989, the state advised that it anticipated submitting a draft state program application to EPA by September 1990; • In FY 1990, as part of its LUST CA work plan for FY 1991, the state promised to submit a draft application for state program approval by July 1991; and • In 1991, the date for submission of the draft application was pushed back to October 1992, due to "competing priorities". In its FY 1991 mid-year LUST evaluation, the Region expressed concern over the state's on-going delays and commented that: EPA is concerned about the tardiness of State Program Approval application related work plan submittals. Although most of the late submittals can be attributed to a shortage of staff available to conduct the work, EPA suggests that the SWRCB [the state] place more emphasis on completing the work required to submit an application for State Program Approval. In its subsequent FY 1991 year-end evaluation, the Region commented that it was "pleased with the increased emphasis and attention the SWRCB [the State] is giving to State Program Approval and the development of an application package". However, the state again delayed submission of its draft application for state program approval until FY 1993. As of December 31, 1991, three of the six components required of a state program had not been submitted to the Region for approval, and none had been approved by the Region. According to 40 CFR 281.20, a state application for program approval must include the following six components: (i) a program description; (ii) applicable laws and regulations; (iii) the demonstration of adequate enforcement; (iv) a memorandum of agreement between the state and EPA; (v) a statement from the Attorney General certifying that the state has the authority to carry out the program; and (vi) a letter from the Governor requesting program approval. The three components not yet submitted for approval included: the memorandum of agreement; the demonstration of adequate enforcement; and the Governor's letter. The other components were in various stages of regional review, and had not been approved as of the date of our audit. 69 ------- The state cited several reasons for its delayed program submittals including: competing priorities; limited staff; and organizational and personnel changes within the state. We acknowledge the state's position. However, in our opinion, the state's response suggests a high priority has not been placed on the timely preparation and submission of the program approval packages. LACK OF INCENTIVE FOR PROGRAM APPROVAL We believe that the primary reason for the state's lack of progress in getting its program approved was that it had little financial incentive to do so. In this respect, the state was aware that the Region has not made LUST funding contingent upon state program approval. However, OSWER Directive 9650.10 encourages the Region to link state program approval to LUST funding as shown below: EPA Regions are encouraged to use the (LUST) Trust Fund as an incentive for states to develop programs and apply for program approval. Regions should develop criteria to measure and evaluate state progress. They should consider the degree of progress in allocating Trust Fund monies to States. (Underscore added.) Our review disclosed that the Region had not applied the concepts included in the OSWER directive. It has, instead, continued to provide LUST CA funds to the state despite the state's lack of progress in preparing its program application. The Region also had not developed objective criteria for evaluating a state's progress. As a result, the preparation of California's draft program application has been delayed for more than three years from its original target date of September 1990 to October 1992. In a September 1991 meeting, state personnel confirmed that there currently was little financial incentive for the state to have its program approved by the Region. The program personnel stated that "If EPA was to tie (the availability of) LUST Trust funds to obtaining state program approval, then the state would seek to have its program approved." Shortly after this meeting, the Region reported in its initial FY 1991 evaluation that California had shown a "willingness to increase its emphasis on proceeding with the development of the State Program Approval (SPA) application." We are not clear as to the basis for the above statement in view of the state's comments in September 1991. It appears that the Region's optimism was unfounded because the state subsequently requested a delay in submission of its draft application for state program approval until FY 1993. 70 ------- In its final FY 1991 evaluation in February 1992, the Region finally threatened to tie LUST CA funding to program progress and advised the state that: Staffing shortages and changes within the SWRCB have caused many delays in work plan output submittals, particularly those pertaining to quarterly reporting to EPA and the development of a SPA [State Program Approval] application...SPA application development may become tied to LUST Trust Fund allocation. There was no indication that the Region followed up on the above letter. We believe that the state should be formally advised that future LUST funding will be linked to satisfactory progress on completing an approvable draft program application. STATE PROGRAM WAS NOT IN COMPLIANCE WITH FEDERAL REQUIREMENTS Lack of state program approval has essentially allowed the state to operate its LUST program without fully complying with Federal requirements for the past five years. In this regard, we found that California's LUST program: • Included requirements that were less stringent than the corresponding Federal requirements; and • Did not provide for adequate enforcement of program requirements. State Clean-Up Enforcement Rules Not As Stringent As EPA's We found that the state's laws and regulations were not as stringent as EPA's in the enforcement area. In this respect, state law provided for lower maximum penalty amounts, and more lenient penalty computation procedures. Maximum Penalty Amounts. State law was not as stringent as RCRA requirements with respect to maximum penalties. RCRA, Subtitle It Section 9006 states that: "Owners or operators who fail to comply with underground tank requirements are subject to a civil penalty not to exceed $10,000 for each tank for each day of violation." However, California law limited maximum civil penalties to $5,000 for each tank per day. The guidance contained in RCRA, Section 9004, makes it clear that a state program cannot be approved unless an adequate enforcement program is in place. This guidance states that: State programs may be approved by the [EPA] Administrator only if the state demonstrates that the state program provides for adequate enforcement of 71 ------- compliance with [underground tank] requirements and standards. In discussing the maximum penalty differences with regional staff, they advised that California's $5,000 penalty amount was considered adequate pursuant to 40 CFR 281.41(a)(3) which states that: Civil penalties for failure to comply with any state requirements or standards for existing or new tank systems must be capable of being assessed for each instance of violation, up to $5,000 or more for each tank for each day of violation. (Emphasis added.) While the above Federal regulation appears to give the Region the authority to approve a state program where maximum penalties are less than $10,000 per tank per day, but at least $5,000, we believe that the Region should consider requiring California's program to include the higher maximum before it approves the state program. Many of California's recalcitrant tank owners and operators were large oil companies that face high costs for cleaning up leaking tank sites. In our opinion, the state needs the ability to assess a higher penalty level to promote compliance and deter would-be violators. This is particularly true since it is unlikely that the Region would initiate any enforcement actions on its own, given the large size of the regulated community and the limits on Federal resources. We also noted that Arizona, another state in Region 9, has adopted a maximum penalty of $10,000 per day per tank. State Penalty Computation Procedures. Our review disclosed that the Region has not required California to develop enforcement policies that met the requirements of EPA's General Enforcement Policy No. 21. This policy provides that "...the penalties generally should, at a minimum, remove any significant economic benefits resulting from the failure to comply with the law." During our review of California's LUST enforcement program, we found that penalties were not being computed to offset economic benefits (see Chapter 3 of this report). Penalties were significantly less than what was required to offset the economic gain that owners and operators realized by not complying with underground tank requirements* In order for the state program to be approved, we believe that its enforcement policies must meet the requirements of EPA's General Enforcement Policy No. 21. As indicated in Chapter 3 of this report, the Region has allowed California to operate an inadequate LUST enforcement program. During our audit, regional program officials assured us that they 72 ------- would require the state to implement an effective enforcement program. While these comments are acknowledged, our audit disclosed the following serious enforcement weaknesses existed in the state: • Enforcement actions were generally not being taken against owners or operators that were not cleaning up their leaking tank sites; • Clean-up-and-abatement orders were not being followed, and penalties were not being assessed; • Enforcement actions were issued months or years after a deadline for a cleanup action had passed; and • When penalties were assessed, they did not deter noncompliance because they were less than the cost of a clean-up or the minimum penalty allowed under state law. Since an adequate enforcement program is a required component for approval of a state program, the California program should not be approved until it can demonstrate it is taking prompt, aggressive enforcement actions and assessing penalties that at least exceed the cost of compliance. PROGRAMS During the course of our review, we learned that the States of Arizona, Hawaii, and Nevada were having similar problems developing their state programs. None of the state programs for these states had been approved, and there were indications that their enforcement laws were also insufficient. Therefore, we believe the recommendations in this finding relating to the state of California can also be applied to the other states in Region 9. Slow Progress In Program Approval Arizona, Hawaii, and Nevada did not have approved state programs. At the time of our audit, only Nevada had submitted a draft application for state program approval. None of these states appeared to be making rapid progress toward approval of their state programs, although they had collectively received about $6 million in LUST funding between FY 1987 and FY 1991. From information obtained during our review, it appears doubtful that Nevada's program will be approved before 1993. Similarly, Arizona and Hawaii do not anticipate program approval until 1994 and 1995, respectively. Until their state programs are approved, there is little assurance that state programs can operate effectively in lieu of the Federal program. Our 73 ------- discussion of the problems being experienced by these states are included in the following subparagraphs. State Of Nevada. The Region had identified a deficiency in Nevada's enforcement law in December 1990, and recommended that the state revise the law. However, when Nevada submitted a draft of its state program for preliminary approval in March 1992, over one year later, it contained the same deficiency. Because Nevada's legislature meets only once every two years, this deficiency cannot be corrected until 1993. In the meantime, Nevada has been operating with an enforcement law that is much less stringent than the Federal law. Nevada's state law, like California's, provided for a maximum penalty of only $5,000 per day, rather than the $10,000 provided for in the law. In addition, Nevada's maximum penalty was to be assessed on a per site basis, instead of on a per tank basis, as authorized by Federal law. State Of Arizona. Arizona has not developed its implementing regulations for the LUST program. It originally planned to submit its regulations for approval in early 1992. However, it explained that a change in key state personnel resulted in the regulations being recalled for additional review and revision by the state. The Region estimated that it did not anticipate program approval until 1994. However, as of the date of our review, a target date had not been established for the submission of the state regulations for EPA approval. State Of Hawaii. Hawaii has done little to develop its state program. The state did not pass its underground storage tank laws until June 1992, more than three years after the Federal regulations became effective. At this time, the Region does not anticipate final program approval until 1995. In our opinion, the linking of the LUST CA funding with the program approval process for the above states would help to expedite the states' actions. RECOMMENDATIONS We recommend that the Regional Administrator: 1. Make future LUST CA funding contingent upon the Region's approval of the state program. In making this approval, the Region should, as a minimum, make sure that: a. Objective criteria is developed to measure and evaluate state progress. b. LUST CA funding is tied directly to submission of a draft state program for EPA approval. 74 ------- c. The state has provided for the adequate enforcement of program requirements. 2. Require state leaking tank site clean-up enforcement laws to be at least as stringent as the Federal law before approving a state program. In this respect, the Region should make sure the states adopt enforcement penalty guidance at least as stringent as EPA's General Enforcement Policy No. 21. REGIONAL RESPONSE AND PIG EVALUATION Regional Response. The Region agreed with recommendation I.e., and stated that it "will ensure that the state provides for adequate enforcement through evaluation and negotiation of the compliance, monitoring and enforcement policy and procedures..." The Region did not agree with recommendation nos. l.a. and l.b. and provided the following specific comments. The grantee did not respond to recommendation 2. Regional Response To Recommendation 1. The Region commented that: We feel strongly that tying future funds to program approval would be counterproductive, simply diverting funds needed to continue building local capability so that the program COULD be delegated. The state has moved forward on state program approval, and is developing and improving their program. It should be recognized at the outset, that limited resources are available for State program oversight. The State is moving consistently towards program approval, and has completed portions of an application. We anticipate completion of a complete preliminary application in the near future. The size of the State's universe, and"the complexity of its administrative process makes it unique in the nation. We believe that the State has shown more than adequate progress towards state program approval. Moreover, we have a target date for formal approval of late 1993 or early 1994. Making future LUST funding contingent upon Regional approval of the program is not appropriate at this time. Headquarters has decided to direct LUST carryover funds to those states with approved programs as a 'bonus' for those states who have achieved state program approval. We believe that the carrot, versus the stick approach, is a more powerful motivator. In addition, to drastically modify distribution of LUST funds in the Region further would not provide the desired outcome. Funding helps to build state and local capacity. 75 ------- Reducing current funding levels would be a drastic measure and would compromise present levels of capability. Regional Response To Recommendation l.a. The Region said that "Objective criteria exist in Headquarters guidance and in the LUST cooperative agreement. We are currently using this criteria to evaluate state progress through their state program application pieces." Regional Response To Recommendation l.b. The Region commented that: California has made tremendous progress towards submittal of an application, and we anticipate a full application in 1993. Using distribution of LUST funds to make application submittals faster would not be productive. During FY 93, we will be identifying and evaluating obstacles to program approval for all our States. Many of these obstacles are being encountered nationwide, and are often beyond State control. OIG Evaluation. Our comments, keyed to the Region's response, are as follows: Recommendation 1. We disagree that linking LUST funding to state program approval would be counterproductive. The state has extended its deadlines for state program approval on three occasions, delaying submission of a draft program by more than three years. We were advised by state personnel that there was little financial incentive for the state to have its program approved by the Region. They indicated that "If EPA was to tie LUST Trust Funds to obtaining state program approval, then the state would seek to have its program approved." Further, the guidance contained in OSWER Directive 9650.10 recommended the linking of LUST funding with state program approval. The Directive states that "Regions should develop criteria to measure and evaluate state progress. They should consider the degree of progress in allocating Trust Fund monies to States." The Region's response discussed the use of objective criteria in evaluating state progress. We concur with the use of such criteria. However, if adequate progress was not being made, some portion of LUST funding would be withheld pending completion of planned activities. This would provide the state with incentive to complete its planned program approval activities on a timely basis. 76 ------- In addition, the Region should remember that the long-term goal of the LUST program is to prevent leaks. It remains our position that an approved effective state program will facilitate the accomplishment of this goal. The Region responded that the target date for the program approval was in late 1993 or early 1994. We believe that a specific target date should be established and monitored. During the audit exit conference, regional representatives commented, if the target dates were not met, it would consider an adjustment to the LUST funding. Recommendation l.a. Our audit showed that the Region was not using objective criteria to evaluate progress toward state program approval. Unless objective criteria is identified and applied, the Region cannot support its determination that a state is making "more than adequate progress" toward state program approval. Recommendation l.b. As previously noted, contrary to the Region's position, state personnel acknowledged that tying LUST funding to program approval would be productive. In our opinion, the state has not given program approval a high priority. Tying LUST funding to program approval could cause the state to give program approval a higher priority. 77 ------- Local Agency Alameda County APPENDIX I SCHEDULE OF AGENCIES IN THE LOCAL OVERSIGHT PROGRAM Agencies Excluded Alameda Water District, Berkeley, Fremont, Hayward, Newark, Pleasanton, Union City Humboldt County Kern County Los Angeles County Merced County Napa County Orange County Riverside County Sacramento County San Bernardino County San Diego County San Francisco City and County San Joaquin County Santa Barbara County Santa Clara Valley Water District Solano County Sonoma County Stanislaus County Tulare County Ventura County Burbank, Glendale, Long Beach, Los Angeles, Pasadena, Santa Monica, Torrance, Vernon Anaheim, Fullerton, Orange, Santa Ana Vallejo Healdsburg, Santa Rosa Ventura 78 ------- CA LOP LUST LUSTIS RCRA SARA STARS UST APPENDIX n ABBREVIATIONS Cooperative Agreement Local Oversight Program Leaking Underground Storage Tanks Leaking Underground Storage Tank Information System Resource Conservation and Recovery Act Superfund Amendments and Reauthorization Act State Activity Reports Underground Storage Tank 79 ------- DISTRIBUTION Region 9 Regional Administrator Director, Hazardous Waste Management Division Audit Follow Up Coordinator Headquarters Office Inspector General (A-109) Deputy Inspector General Director, Grants Administration Division (PM-216F) Agency Follow Up Coordinator (PM-208) Attn: Assistance Administrator for Administration and Resources Management Agency Follow Up Coordinator (H-3304) Attn: Director, Resource Management Division Assistant Administrator for Enforcement (LE-133) Associate Administrator for Regional Operations (H-1501) 80 ------- |