UnitM Star*
Environmental Proti
wEPA Report of Audit
REVIEW OF TWO SIGNIFICANT
REMOVAL ACTIONS IN REGION 5
AUDIT REPORT NUMBER
E1SHD9-05-0019-9100493
SEPTEMBER 29, 1989
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TABLE OF CONTENTS
PAGE
SCOPE AND OBJECTIVES 1
SUMMARY OF FINDINGS 2
ACTION REQUIRED 6
BACKGROUND 7
FINDINGS AND RECOMMENDATIONS
1. AWARDING THE PROPER TYPE OF SITE SPECIFIC
CONTRACT WILL HELP THE REGION ACHIEVE EFFICIENT
REMOVALS 10
2. ADEQUATE SEARCH FOR POTENTIAL RESPONSIBLE
PARTIES WILL BENEFIT COST RECOVERY EFFORTS ... 22
i
3. ASBESTOS TRAINING FOR SUPERFUND EMPLOYEES WILL
HELP ENSURE WORKER SAFETY 36
APPENDICES
1. DAYTON TIRE AND RUBBER - SITE DESCRIPTION AND
BACKGROUND 43
2. CAM-OR SITE - SITE DESCRIPTION AND BACKGROUND . 46
3. REGIONAL ADMINISTRATOR REPLY
TO OIG DRAFT REPORT 49
4. DISTRIBUTION 55
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF INSPECTOR GENERAL
NORTHERN DIVISION
1O W. JACKSON BLVD.. 4TH FLOOR
CHICAGO. ILLINOIS 6O6O4
OFFICE OF AUDIT OFFICE OF INVESTIGATION
312/393-2486 312/393-2907
September 29, 1989
MEMORANDUM
SUBJECT: Audit Report No. E1SHD9-05-0019-9100493
Report on Review of Two Significant
Removal Actions in Region 5
FROM: Anthony C. Carrolloj?_//0*1 *
Divisional Inspector General for Audits
Northern Division
TO: Valdas V. Adamkus
Regional Administrator
SCOPE AND OBJECTIVES
We have completed an audit of Region 5's management of two
significant removal actions. Our objective was to evaluate the
Region's effectiveness and efficiency in managing removal actions
at these two sites. Specifically we determined whether:
1. Sites were properly evaluated and classified as removals in
accordance with guidelines set forth in the Agency's
National Contingency Plan.
2. Immediate removal was the most effective and efficient
option at the time and mitigated site hazards.
3. Actions were taken in accordance with Agency policy and
procedures.
4. Responsible parties were identified and appropriately
pursued to share in the cost of the cleanup.
5. Environmental and worker protection laws were adhered to
during removal actions.
We selected significant removal actions at Dayton Tire and Rubber
near Dayton, Ohio, and Cam-Or near Westlake, Indiana, because
they represent recent significant removals initiated after the
Superfund Amendments and Reauthorization Act of 1986. Each site
has cleanup costs of more than $2 million with cleanup activities
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lasting more than 12 months. The issues in this report are based
upon our review of these two removal actions and do not reflect
upon the overall adequacy of Region 5's removal program.
We performed the audit in accordance with the "Government
Auditing Standards" (1988 Revision) issued by the Comptroller
General of the United States. We conducted our field work from
October 15, 1988 to May 15, 1989. After we completed our
fieldwork, Regional officials provided us additional information
which we have included in our draft report.
To accomplish our objectives, we reviewed documents covering
activities at these two sites from the time immediate removal
actions began at each site to the completion of our fieldwork.
We reviewed Regional, state, and local agency records for each
site to determine if removal activities were administered in
accordance with Agency guidance. We also discussed site
activities with Regional, state and local officials. We also
visited both locations to observe removal activities.
Significant instances of non-compliance with internal
administrative controls including applicable guidance are
summarized below and .detailed later in this report. No other
issues came to our attention which we believed were significant
enough to warrant expanding the scope of this audit.
SUMMARY OF FINDINGS
Our review disclosed three findings in the Region's Superfund
program. These findings concern three important areas of the
Superfund program which are to:
— Cleanup Superfund sites in a cost effective manner.
— Obtain reimbursement from parties responsible for creating
or contributing hazardous wastes to these sites.
Ensure cleanups comply with other environmental laws and
that worker safety procedures are followed.
The appendices of this report describe the hazardous conditions
at each site and a brief chronology of events. At each site, as
the first two appendices describe, Regional Superfund personnel
acted appropriately (1) to properly evaluate and classify the
sites as removal actions, (2) in choosing a removal action as an
effective option and (3) in mitigating immediate site hazards.
As a result of our report. Region 5 has taken actions to
strengthen its removal program. We discussed our findings and
recommendations with Region 5 and Regional Counsel officials.
Their comments and actions in response to our findings, dated
September 26, 1989, are discussed in the body of this report.
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Also, their formal comments to our draft report are attached as
Appendix 3 to this report. Their actions, if properly
implemented, will substantially correct the deficiencies found
during our review. We recommend that the Regional Administrator
ensure that the planned corrective actions are completed. We
also recommend that, in his written response to this report, he
provide us with details of the actions completed and the
milestone dates for completion of actions in process.
The following summarizes the three issues in our report.
FINDING NO. 1 - Awarding The Proper Type Of Site
Specific Contract Will Help The
Region Achieve Efficient Removals
Agency contracting officials awarded a $2 million site-specific
contract with provisions which were inadequate to complete
cleanup of hazardous wastes at the Dayton Tire and Rubber site.
Consequently, cleanup of hazardous wastes was not completed under
the site-specific contract because contract provisions limited
the amount of hazardous wastes that could be removed. For
example, one Agency review reported that the low quantity of
asbestos to be removed, as provided for in the contract, forced
the On Scene Coordinator (OSC) to make impractical decisions in
order to stay within contract limitations. The actual amount of
asbestos far exceeded the amount specified in the contract. In
addition, as a result of contract limitations, Regional Superfund
officials could not determine if the site specific-contract
achieved its goal of being cost effective.
This condition occurred primarily because the Region's initial
contamination studies did not support the type of contract
awarded by Headquarters contracting officials. These studies did
not show the full extent of contamination because the site was
unusual in size and complexity. Despite the studies limitations,
Headquarters contracting officials awarded a firm fixed price
contract with provisions limiting the wastes that could be
removed. As a result, cleanup of hazardous wastes were not
completed under this contract when Regional personnel found
additional wastes needing removal.
Our review also showed that after awarding the site-specific
contract, Regional employees permitted the cleanup contractor to
perform a more detailed extent of contamination study to
accurately assess the amount of cleanup required. However, as
explained in this finding, using the cleanup contractor for this
purpose is contrary to other Agency directives which were issued
to prevent potential conflicts of interest.
We discussed this issue with Regional Superfund officials. They
explained that their use of a site-specific contract represented
their initial effort to comply with a Headquarters request to use
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site-specific contracts. They agreed its use was not
satisfactory because their initial extent of contamination
studies did not support the award of a firm fixed price contract
to the cleanup contractor. These officials also explained that
an OSC presented Region 5's difficulties in using a site-specific
contract to a national meeting of the Agency's On-Scene
Coordinators. Officials also explained they have not made
greater use of site-specific contracts because Superfund sites
meeting the criteria for site-specific contracts have not been
available. Officials advised us, however/ that they are
currently planning to use site-specific contracts on two other
significant removal actions.
In reply to our draft report recommendations, the Region agreed
that Superfund personnel will follow the Agency's April 1989
directive for using site-specific contracts. This includes a
review each quarter for possible site-specific contracting
candidates during the Region's update of the removal Superfund
Comprehensive Accomplishments Plan. Superfund officials will
also work closely with contracting officials to ensure that the
proper type of site-specific contract is awarded and that an
appropriate degree of contract flexibility is maintained.
Personnel will also use EPA employees or a contractor, other than
the cleanup contractor, to prepare a detailed extent of
contamination study prior to preparing a statement of work and
awarding the contract.
FINDING NO. 2 - Adequate Search For Potential
Responsible Parties Will Benefit
Cost Recovery Efforts
A Region 5 contractor did not perform an efficient and timely
search for potentially responsible parties (PRPs), responsible
for PCB1 contaminated oil at Cam-Or. This condition occurred
primarily because the contractor copied Cam-Or records that were
not necessary for identifying PRPs. In May 1987, the contractor
began a project, lasting about a- year, to photocopy 200 boxes of
Cam-Or's records. In May 1988, after the contractor had received
about $100,000 of Agency funds for this project, Regional
employees determined that the photocopies would not identify
PRPs. Consequently/ the contractor did not use Agency funds
efficiently and its inadequate PRP search delayed the Region's
effort to obtain reimbursement of over $2 million in cleanup
costs.
In December 1988, Regional attorneys finally acquired the
necessary data from the contractor and promptly sent information
request letters to 172 companies to determine responsibility for
hazardous wastes at Cam-Or. At the time we completed our
fieldwork in May 1989, Regional Counsel and Regional Superfund
'PCB refers to polychlorinated biphenyls
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personnel had not followed up with 77 companies who had not
responded to the Region's letters. Regional Counsel advised us
they intend to send follow up letters to non-responders.
We also found that the Region's ability to determine the adequacy
of contractor PRP searches, like the PRP search at Cam-Or, is
hindered because the Agency's National Enforcement Investigations
Center (NEIC) suspended a program to audit Regional contractors
performing PRP searches. For this program, NEIC used a
contractor who was experienced in performing PRP searches.
Although Regions can still request NEIC's contractor to perform
audits, Regional attorneys were not aware of this service. We
advised Regional Counsel's Chief of the Solid Waste and Emergency
Response Branch of NEIC audits. He believes audits of Region 5
contractors performing PRP searches can be useful and will inform
Regional attorneys.
In addition, our review shows Regional Counsel should provide
NEIC officials certain information regarding NEIC's contractor.
Region 5 had previously used NEIC's contractor to perform a PRP
search for another Superfund cleanup. Regional Counsel advised
us that NEIC's contractor performed poorly. This information
should be provided to NEIC officials so they can ensure their
contractor's performance is satisfactory.
We discussed these issues with Regional personnel who agreed that
the PRP search at Cam-Or was not as efficient or as timely as the
search should have been.
In response to our draft report recommendations, the Regional
Administrator agreed (1) to require Superfund employees to
maintain early and continuous contact with Regional contractors
so contractors fully understand the type and detail of
information required for their PRP searches; (2) that it is
proper to send follow-up administrative orders to companies that
did not respond to the Region's initial information request
letter; (3) to send letters to companies for whom an alternate
address was found; and (4) to forward to NEIC, where appropriate,
the information required to audit the work of contractors who
perform unsatisfactory PRP searches.
FINDING NO.3 — Asbestos Training For Superfund Employees
Will Help Ensure Worker Safety
An EPA Region 5 subcontractor did not conduct a major asbestos
removal project at Dayton Tire and Rubber in accordance with
regulations promulgated by the Occupational Safety and Health
Administration (OSHA) for asbestos removal. This condition
occurred because the contractor did not adhere to OSHA
regulations. In addition, the Regional On-Scene Coordinator
(OSC) did not have sufficient knowledge of asbestos worker
protection rules to allow him to determine the need for the
contractor to follow OSHA worker protection rules. Consequently,
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the workers' risk of inhaling asbestos fibers increased when the
contractor violated OSHA worker protection rules by not properly
enclosing the work area and not ensuring employees followed
proper decontamination procedures. Medical studies of asbestos-
related diseases, such as asbestosis, lung cancer, mesothelioma,
and other cancers, have revealed that the primary exposure route
is inhalation of asbestos fibers.
A 1987 survey of Regional offices by Headquarter Superfund
officials shows the need for Superfund employees to be aware of
asbestos regulations. This survey report stated there were over
50 asbestos Superfund sites of concern nationwide. The hazards
at these sites included friable asbestos insulation materials,
industrial processing wastes, asbestos-laden fill material, mine
tailings and unpaved roadways of asbestos bearing serpentine. As
a result, Headquarter Superfund officials have established an
asbestos workgroup to assist Regions when confronted with
asbestos hazards at Superfund sites.
We discussed this issue with Regional Superfund officials who
explained that during our review they initiated steps to train
OSCs in proper asbestos removal procedures. In addition, the
OSHA violations at Dayton Tire and Rubber have been corrected.
These actions are appropriate since Regional Superfund officials
anticipate friable asbestos will be a problem in the future
because they are increasingly cleaning improperly closed old
industrial buildings that will likely contain asbestos.
In response to our draft report recommendation, the Regional
Administrator agreed to require that all Regional On-Scene
Coordinators receive training in proper asbestos removal
procedures.
In accordance with EPA Order 2750, the action official is
required to provide this office a written response to the audit
report within 90 days of the audit report date.
We have no objection to the further release of this report at
your discretion. Should there be any questions, please call me
or Audit Manager, Robert Bronstrup.
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Thousands of waste disposal sites in this nation are contaminated
with hazardous substances which threaten the environment and
population. To respond to this problem, Congress passed the
Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, commonly known as Superfund. By executive order,
the President assigned the Environmental Protection Agency (EPA)
primary responsibility for administering the Superfund Program.
Superfund gave EPA broad authority to respond directly to
releases or threatened releases of hazardous substances,
pollutants, or contaminants that might endanger public health or
the environment. Congress established a 5-year $1.6 billion
Hazardous Substance Response Trust Fund program, financed with a
tax on crude oil and certain chemicals. Superfund also enabled
EPA to recover cleanup costs from those parties responsible for
the problem, including property owners, waste generators, and
waste transporters.
In October 1986, Congress enacted the Superfund Amendments and
Reauthorization Act (SARA) of 1986. SARA, among other things,
— Reauthorized the program for 5 years;
— Increased the size of the Trust Fund to $8.5 billion;
— Stressed permanent remedies and treatment or recycling
technologies for cleaning up hazardous waste sites;
— Set specific cleanup goals and standards; and
— Provided new enforcement authorities (or tools) allowing EPA
to ensure that those responsible for hazardous waste
problems pay for their cleanup.
There are two basic types of Superfund-financed cleanups: removal
actions and remedial actions. Remedial actions are long-term
efforts to mitigate or permanently eliminate conditions at
hazardous waste sites. Removal actions were historically limited
to short term responses to immediate and significant threats at
any hazardous waste site but were not necessarily final
solutions. Experience has demonstrated, however, that not all
actions classified as removals will be equally urgent. For
example, situations involving fire/explosion or imminent,
catastrophic contamination of a reservoir may require more prompt
and expeditious attention than certain drum removals or cleanups
of surface impoundments.
EPA's National Contingency Plan (NCP), which contains EPA's
policies and procedures for implementing Superfund, broadened
authorities and provided removal response personnel with more
latitude to abate general threats in the Agency's removal
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program. Agency Superfund directives state that the Agency's On
Scene Coordinators (OSCs) may initiate a removal action in
response to a threat of release of hazardous substances and may
also undertake actions previously categorized as initial remedial
measures. The directives define three categories of removals:
* Classic Emergencies - Those actions where the release
requires that on-site activities be initiated within hours
of the lead agency's determination that a removal action is
appropriate.
Time-Critical - Those removals where, based on the site
evaluation, the lead agency determines that a removal action
is appropriate and that there is a period of less than six
months available before on-site activities must be
initiated.
* Non-Time-Critical - Those removals where, based on the site
evaluation, the lead agency determines that a removal action
is appropriate and that there is a planning period of more
than six months available before on-site activities must
begin.
The principal statutory limitation on removals is that those
activities not continue after the expenditure of $2 million or
twelve months has elapsed from the initiation of response unless
certain criteria are met. SARA permits continued response action
if such action is otherwise appropriate and consistent with the
remedial action to be taken. In addition, all removal actions,
to the extent practicable, must contribute to the efficient
performance of long-term remedial actions. The primary purpose
of this requirement is to improve the efficiency of removal
actions by requiring response personnel to consider the long-term
cleanup plan before selecting a removal action.
A successful removal program is important to addressing Congress'
repeated concerns that the Agency cleanup Superfund sites in an
efficient and effective manner. For example, the Committee on
Appropriations stated in its FT 1989 appropriation report that
first consideration must be given to actions which reduce risks
at Superfund sites - before the Agency performs extensive studies
under the remedial program. The Committee also encouraged the
Agency to take full advantage of its waiver authority to
undertake removals exceeding $2,000,000 in situations where early
control actions are appropriate and cost effective.
A May 1989 report1 by the Senate Subcommittee on Superfund, Ocean
and Water Protection expressed a similar opinion. This report
explained that using removal contractors to accomplish cleanup
Cleaning Up The Nation's Cleanup Program (Senate Subcommittee
On Superfund, Ocean and Water Protection, May 1989)
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work before long term studies are completed is a promising way to
accomplish cleanups. This report added that, in these
circumstances, the cleanup should be in a manner that is
completely consistent with the standards and requirements that
must be applied through the traditional remedial process.
In June 1989, EPA completed A Management Review of the Superfund
Program. The objective of this review was to (1) identify
problems with the Superfund program, (2) the approaches the
Agency should follow to resolve problems, and (3) administrative
opportunities for increasing the pace, number, quality, and cost
effectiveness of cleanup actions the Agency is taking at
Superfund.
This review announced a new long term strategy for Superfund.
The review explains that little in the strategy is literally
"new," since most of the principles have begun to drive the
program in recent years. The strategy contains elements to:
— Control acute threats immediately.
— Schedule incremental steps to cleanup sites over time,
expending scarce resources first on problems posing the
most serious risks to public health.
— Carefully monitor and maintain sites over the long term.
— Emphasize enforcement to induce private party cleanup.
— Improve efficiency of program operations.
At the time we began our review, Region 5 had 24 removals, of
which 9 had expenditures exceeding $2 million. In FT 1989,
Region 5 officials allocated $16,000,000 for removal projects.
Significant removals can cost significantly more than the
$2,000,000 statutory limit. For example, expected cleanup costs
at Dayton Tire and Rubber and Cam-Or are estimated to be
$5,496,086 and $4,222,000, respectively. These cleanup costs
include expenditures for the cleanup contractor, security guards,
transportation and disposal of hazardous wastes, Region 5's
Technical Assistance Team, and other intramural costs.
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FINDINGS AND RECOMMENDATIONS
FINDING NO. 1 - Awarding The Proper Type Of Site
Specific Contract Will Help The
lion Achieve Efficient:
Agency contracting officials awarded a $2 million site-specific
contract which was inadequate to cleanup hazardous wastes at the
Dayton Tire and Rubber site. Consequently, cleanup of hazardous
wastes was not completed under the site-specific contract because
contract provisions limited the amount of hazardous wastes that
could be removed. For example, one Agency review reported that
the low quantity of asbestos to be removed, as provided for in
the contract, forced the On Scene Coordinator (OSC) to make
impractical decisions in order to stay within contract
limitations. The actual amount of asbestos far exceeded the
amount specified in the contract. In addition, as a result of
contract limitations, Regional Superfund officials could not
determine if the site-specific contract achieved its goal of
being cost effective.
This condition occurred primarily because the Region's initial
contamination studies did not support the type of contract
awarded by Headquarters contracting officials. These studies did
not show the full extent of contamination because the site was
unusual in size and complexity. Despite the studies' limita-
tions, Headquarters contracting officials competitively awarded a
firm fixed price contract with provisions limiting the wastes
that could be removed. As a result, cleanup of hazardous wastes
were not completed under this contract when Regional personnel
found additional wastes needing removal. Cleanup will be
completed using a more expensive emergency type of contract.
Our review also showed that after awarding the site-specific
contract, Regional employees permitted the cleanup contractor to
perform a more detailed extent of contamination study to
accurately assess the amount of cleanup required. However, as
explained in this finding, using the cleanup contractor for this
purpose is contrary to other Agency directives which were issued
to prevent potential conflicts of interest.
Agency Policy Is To Perform Cleanups
In A Cost Effective Manner
Agency policy explains that response actions should cleanup
hazardous wastes in a cost effective manner. In recent years,
the Agency has initiated steps to make removal cleanups more cost
efficient in order to ensure the efficient use of public monies.
In prior years the Agency relied on four large zone contracts,
known as the Emergency Response Cleanup Service (ERGS) contracts,
to respond to all removals, regardless of the degree of urgency
associated with any particular removal. The ERCS contracts were
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originally intended as relatively "on call" contracts for
responses to classical emergencies and other urgent environmental
situations.
Agency experience showed, however, that the ERGS contract
strategy did not result in good competition and that contractor
cost rates were expensive because contractors were "on call" to
respond to classic emergencies. An OIG review1 of ERGS also
identified deficiencies in a number of areas, including
competition, subcontractor price reasonableness, and monitoring
by contracting officers. Accordingly, continued use of ERGS
could not assure the Agency of cost effective responses to site
cleanups, particularly those cleanups which were not classic
emergencies.
In 1987, in response to these deficiencies, Headquarters
contracting officials initiated a policy to use smaller regional
and site-specific contracts to increase competition. They
believed that through the process of increased competition, the
Agency would achieve more cost effective removals of non-
emergency cleanups. According to the Agency's Director of
Procurement and Contracts, the Agency could award contracts on a
site-specific basis where the Agency has four to nine months to
study a site, develop a work scope, and conduct a competitive
procurement. Through this process of increased competition, the
Agency intended to achieve more cost effective removals.
An April 1989, Agency directive stated that a key component of
the removal response strategy is site-specific contracting. In
this directive, the Agency's Director of the Office of Emergency
and Remedial Response (OERR) instructed all Regional Superfund
Directors to make greater use of site-specific contracts because
they promote competition and are cost effective. The directive
stated that in FY 1988 the Agency made no use of site-specific
contracting and in FY 1987 only 4 of 256 removals started by the
Agency used site-specific contracting. He also provided
additional instructions to the Regions on when to use site-
specific contracts.
Site-Specific Contract Chosen
For Davton Tire and Rubber
In April 1987, Region 5 and Headquarter Superfund officials
selected Dayton Tire and Rubber, as one of their pilot projects
to use a site-specific contract. The Dayton Tire and Rubber
removal was not a classic emergency and was of sufficient size
and duration, in the Region's opinion, to use a site-specific
1 "EPA's Planning, Negotiation, Awarding and Administering of
Emergency Response Cleanup Services Contracts" (E5E26-05-0101-
61508, September 23, 1986).
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contract. Regional Superfund and Headquarters contracting
officials believed that because the site was not a classic
emergency, they had sufficient time to prepare and award a site-
specific contract.
Accordingly, Regional Superfund and Headquarters contracting
employees took the steps necessary to prepare and award a site-
specific contract.
Agency Superfund directives for removals explain that a key to
effective cost management is accurate cost projections prior to
the start-up of a response action. Accurate cost projections
are, in part, determined by the extent of contamination at the
site. Accordingly, in preparing a cost effective site-specific
contract, contracting personnel need to recognize the limitations
in an extent of contamination study so they can award the proper
type of contract.
At Dayton Tire and Rubber, the OSC assisted by the Technical
Assistance Team (TAT), performed an initial extent of contami-
nation study which Regional employees used to prepare the
Statement of Work (SOW) in the site-specific contract. This
study had a limited scope and did not fully characterize the site
which was of unusual size. Areas such as the amount of asbestos
needing removal or encapsulation; the floor area needing PCB
decontamination; and the quantity and makeup of waste liquids and
sludges in buried railroad tank cars, storage tanks, mixing vats
and 55-galIon drums were assessed only to a limited degree. The
TAT, in a January 1988 report, recognized that the study was
limited in scope and recommended:
Prior to initiation of a removal action at Dayton Tire
Company, a study/project planning phase should be conducted
to develop a comprehensive work plan and accurate estimate
of cost. Because of the complexity of the removal work
required to mitigate the hazards posed at the site and the
expansiveness of the facility, it is imperative that
specific factors are identified and closely investigated.
Without careful consideration of these factors, an accurate
work plan cannot be fully developed.
In order for contracting officials to award a firm fixed price
contract, this initial study needed to be comprehensive and
accurate because it would be used in preparing the SOW for the
contract. An SOW specifies the contractor's obligations under
the work assignment in terms of (1) work that must be performed,
(2) results that must be achieved, and (3) a schedule that must
be met. Specifications for each of the three terms were included
in the contract.
In November 1987, however, contracting officials awarded a firm
fixed price contract for about $2 million with specifications
based upon the Region's limited assessments of contamination at
the site. Contracting officials decided to award a firm fixed
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price contract because this contract type places upon the
contractor maximum risk and full responsibility for all costs and
resulting profit or loss. A firm fixed price contract
(1) provides maximum incentive for the contractor to control
costs and perform effectively and (2) imposes a minimum
administrative burden upon the contracting parties.
In awarding the contract, the Headquarter contracting officer
believed the extent of contamination study met Federal
Acquisition Regulations (FAR) requirements for firm fixed prices.
The FAR explains a firm fixed price contract is suitable for
acquiring commercial services on the basis of reasonably definite
functional or detailed specifications.
Accordingly, based upon Region 5's initial extent of
contamination study, the contract terms stated specific cleanup
services to be furnished and included quantities of hazardous
material to be cleaned up, including amounts of PCB contaminated
oils, transformers, metal bands, soil, concrete, water, and
scrap; removal or encapsulation of asbestos; decontamination of
building surfaces; storage facilities for dioxin; and underground
pipe cleaning.
Our review shows that the initial contamination study made by
Region 5 was insufficient for the contracting officer, located in
Headquarters, to award a firm fixed price/indefinite-quantity
contract. If a contracting officer is to award this type of
contract, he must meet the requirements of 48 CFR 15.504 which
states that the "...minimum quantity must be more than a nominal
quantity, but it should not exceed the amount that the Government
is fairly certain to order..." and "...the maximum quantity
should be realistic and based on the most current information
available..."
Our review showed, however, that several contract minimum and
maximum quantities were not even reasonably close to the
quantities of hazardous wastes which had to be cleaned up. Items
such as the amount of asbestos to be removed, the amount of
hazardous debris needing disposal, and the concentration of PCBs
in the soil were underestimated.
The contracting officer could not have been certain of minimum
quantities and the maximum quantities of hazardous wastes to be
cleaned up as stated in the contract because he included a
requirement in the contract that the contractor perform an extent
of contamination study for dioxins, FCBs, asbestos, and other
organic and inorganic contaminants. Accordingly, the contracting
officer was aware that the site was not fully characterized and
maximum and minimum quantities could not be determined at the
time he awarded the contract. Therefore, the contracting officer
should have known that he did not have enough information to set
minimum and maximum quantities for a firm fixed price contract.
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We discussed this issue with Regional Superfund officials who
explained that they had informed the contracting officer that the
extent of contamination figures in their initial contamination
study were preliminary and additional work needed to be done in
order to completely characterize the site. They believed that
the contracting officer should have provided a more flexible
contracting mechanism instead of awarding a firm fixed price
contract.
Problems Encountered With
The Site Specific Contract
Our review of progress reports and other Regional records show
that the contractor did not complete cleanup activities under the
site-specific contract because the actual extent of contamination
at the site far exceeded initial estimates as described in the
limited extent of contamination study. For example, an OSC
report summarized certain problems with the site-specific
contract:
Under the site-specific contract, maximum and minimum
limitations were established; however, because of the
large size of the site and extensive quantities of
contaminated material, these limits were difficult to
define. Consequently, some areas of the contract were
not as precise as they might have been for contracts on
smaller sites. .. .Line Item B.3 allowed for the disposal
of soils contaminated to a concentration of up to 500
ppra PCBs. Thus, when soils with concentrations of PCBs
in the 1000 ppm range were excavated, they could not be
disposed of under the contract and were staged on site
for disposal under ERCS.
We discussed this issue with the OSC who explained that
ambiguities, like the above, made his work more difficult. Since
line items and the SOW are part of the contract, these
differences lead to ambiguities in the contract and problems with
interpretation of work required. The ambiguities made his work
more difficult because he had to resolve the issues with
contractor officials, the Regional Contracting Officer, and
Project Officer.
As a result of difficulties with the site-specific contract, the
OSC requested the TAT to identify additional problems with the
site-specific contract process and present solutions for future
site-specific contracts. On September 30, 1988, the TAT issued a
report describing the difficulties with the site specific
contract. We discussed these difficulties with a TAT
representative who reiterated that the SOW in the site-specific
contract was not specific and did not include a complete and
thorough site characterization of contamination actually present.
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This deficiency was significant because the SOW served as the
contractor's guideline for removal actions. The following are
examples of the problems the TAT found:
1. The SOW did not specify PCB concentrations. The contractor
estimated in the Technical Proposal that PCB concentrations
would be less then 35 ppm and proposed'to dispose of PCB
contaminated soil for $160.93/cubic yard. The contractor
subsequently discovered PCB concentrations greater than 35
ppm after site work began and Regional contracting
personnel had to modify the contract to increase the price
for removal and disposal of PCB contaminated soil from Wolf
Creek from $160.93/cubic yard to $230.19/cubic yard.
2. The SOW called for removal and disposal of a maximum of 40
cubic yards of friable asbestos. A much greater amount of
friable asbestos existed at the site. This difference was
the result of lack of consideration in the original SOW of
the need to remove hanging asbestos that could not be
encapsulated.
The TAT representative explained that the OSC did not prepare
accurate estimates of material for disposal for the SOW because
he did not have an accurate extent of contamination study. In
addition to the inaccurate amounts of asbestos and the
concentration of PCBs, the TAT representative explained the
amount of other hazardous debris needing disposal was
underestimated in the initial extent of contamination study.
Consequently, this line item had to be increased through a
contract modification from 100 cubic yards to 450 cubic yards
which caused a delay of about one month in cleaning up other
hazardous debris.
The problems with asbestos removal provisions in the site
specific contract were also recognized by an Agency Environmental
Response Team (ERT). The ERT provides technical support to the
Regions for several type of activities including (1) extent of
contamination studies, and (2) engineering assistance and
analytical support. An ERT report prepared in February 1988,
identified the difficulty with the low estimate of asbestos
removal in the site specific contract. The report explained that
the low estimate of asbestos removal forced the OSC to make
impractical decisions (what and where to remove) in order to stay
within the contract limitation. The ERT report concluded a
better estimate should have been made after extensive sampling
and analysis was completed by the contractor.
Cleanup Actions Not Completed
Under Site Specific Contract
These deficiencies, according to the OSC and other Regional
Superfund officials, contributed to the incomplete cleanup of
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Dayton Tire and Rubber at the termination date of the site
specific contract on April 2, 1988. The site-specific cleanup
activities which were not completed included:
— Loose asbestos hanging from pipes;
PCB contamination exceeding 500 ppm in the surrounding soil
(EPA's standard for PCBs in soil is 10 ppm).
Incomplete decontamination of building surfaces.
Incomplete removal and disposal of hazardous liquids and
sludges.
— No underground pipe cleaning.
As a result, on April 4, 1988, Regional Superfund officials
issued a delivery order to its ERGS contractor for the remaining
cleanup. The Region's use of ERGS was due to the hazardous
wastes remaining at the site which were not provided for in the
site-specific contract. These wastes, however, posed a threat to
the nearby population and to the environment. These additional
cleanup activities will cost about $1.3 million.
A September 13, 1988 memorandum from the Regional Administrator
to the Agency's Assistant Administrator for Solid Waste and
Emergency Response explained the specific additional cleanup
activity which required additional funds:
Removal of an additional 400 cubic yards of asbestos.
Removal of 800 cubic yards of PCB contaminated soil.
Decontamination of an additional 10,000 square feet of
building surface.
Incineration of 2,805 gallons of oil contaminated with PCBs.
Flushing of an estimated 540 linear feet of underground
drain pipe to remove PCB contamination.
The memorandum stated an immediate risk to the public health and
environment remained because the friable asbestos could be easily
released through thousands of broken windows, constituting an
immediate risk to the nearby residential population. In
addition, the memorandum explained that high concentrations of
PCBs remained in 800 cubic yards of soil and posed an immediate
risk to the public health and the environment because PCBs were
still capable of migrating to a nearby creek. At the time we
concluded our review on May 15, 1989, the OSC estimated that
almost all site work will be completed by August 8, 1989.
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Additional Extent Of Contamination
Study Bv Cleanup Contractor Contrary
To Agency Directive
Our review also showed, that in the site specific contract,
Regional Superfund personnel requested the cleanup contractor to
perform a more detailed extent of contamination study at Dayton
Tire and Rubber. This study was to supplement the initial extent
of contamination estimates made by Regional personnel.
OSWER Directive 9360.0-03B, however, does not allow the cleanup
contractor to perform pre cleanup activities such as extent of
contamination studies, preliminary assessments, and broad
planning activities. The directive does not allow the cleanup
contractor to perform these activities in order "....to avoid a
potential conflict of interest or even the appearance of a
conflict of interest." To avoid having the cleanup contractor
perform these precleanup activities, which determine the cleanup
actions required at a Superfund site, the directive recommends
that the ERT and/or TAT be contacted to perform precleanup
activities.
Appropriately, regional contracts contain clauses to implement
this Agency directive. For example, the site-specific contract
for Dayton Tire and Rubber stated:
If the contractor, under the terms of this contract, or
through the performance of work pursuant to this contract,
is required to develop specifications or statements of work
and such specifications or statements of work are
incorporated into a solicitation, the contractor shall be
ineligible to perform the work described in that
solicitation as a prime contractor under an ensuing EPA
contract.
Therefore, Regional personnel are to perform these types of
activities with assistance of the TAT, ERT or an independent
contractor.
We discussed this issue with Regional Superfund officials who
explained that their policy is not to have the cleanup contractor
perform an extent of contamination study. Normally, the Region
has two mechanisms for implementing extent of contamination
studies, TAT special projects and the Emergency Response Team's
contract. Regional officials explained that at Dayton Tire,
however, they were required by circumstances to violate this
policy. For example, the TAT contract was used for the initial
evaluation of the site which led to underestimating the work
required as described in this finding. Officials recognized that
very substantial additional extent of contamination work was
required, that this work would have to be done under unusually
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difficult conditions inside a very large, complex and dark
building with no power, and that it was far beyond the normal
capacity of either of the available contracts.
Officials explained they had two option: (1) to consecutively
award two separate contracts, the first to complete the extent of
contamination study and the second to perform the actual removal.
This process would have required 12 to 18 months; or (2) combine
the extent of contamination study with the cleanup contract.
The building cleanup portion of the Dayton Tire project was
handled as a non-time critical project because the work did not
have to be done within six months but there was still a
compelling time factor involved.
Regional officials explained during the initial emergency action
to control the discharge of PCB oils to the creek, most of the
roof drains on the building were plugged to intercept further
discharges from the roof. This meant that, during the winter,
ice and snow would accumulate on the flat roof more than normal.
The roof had been weakened by lack of maintenance and by age. A
portion of it had already partially collapsed. A heavy snow load
could have easily caused a general collapse of the roof which
wold have greatly complicated the removal. It was imperative
that the removal start before the winter season.
We agree that the conditions at Dayton Tire and Rubber were
unusual which required many samples in order to accurately assess
the extent of contamination at the site. In cleanups of other
sites, Regional Superfund officials should ensure that the
cleanup contractor does not perform the extent of contamination
study.
A Recent Agency Directive
Provides Additional Instructions
For Using Site Specific Contracts
Although Region 5 encountered problems with the site-specific
contract at Dayton Tire and Rubber, site specific contracting
represents a major Agency initiative to make Superfund removals
more cost effective. The April 1989 OSWER directive to the
Agency's Regional Superfund Directors provided additional
directions on the use of site-specific contracts for removal
actions. The directive listed several factors for deciding
whether or not to use a site specific contract:
1. Lead time — Generally a site-specific contract will take
about four months to complete. About 15 to 20 percent of
removal actions, including most of those involving an
alternative technology, have a sufficient planning horizon
or will last long enough so that some portion of the work
can be done through a site specific contract.
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2. Cost — Actions costing over $2 million should generally
have some component of the work that is done on a site
specific basis.
3. Complexity — Actions, or parts of large actions, that are
relatively straightforward and uncomplicated, are the best
candidates for site-specific contracting. Since site-
specific contracting requires being able to write a clear
statement of work, unusual or poorly defined situations
should be handled through the ERCS mechanisms.
4. Management — Site-specific contract preparation and
management will require contracting officer assistance and
a small amount of program effort beyond what an ERCS action
would require. Consequently, the projected dollar savings
should outweigh the extra staff time that must be invested.
This determination should be made in consultation with the
appropriate contracting officer, who should always be in on
major contracting choices in non-emergency situations.
To use these criteria, the directive advised Regional Superfund
officials to work with their contracting officer to decide the
best contracting approach and:
give serious consideration each quarter to possible site-
specific contracting candidates during the update of the
removal Superfund Comprehensive Accomplishments Plan.
Except in very unusual circumstances, any removal where an
Engineering Evaluation/Cost Analysis is necessary should be
done through a site-specific contract.
- obtain contracting officer assistance to determine projected
dollar savings because site-specific contract preparation
and management will require assistance and a small amount of
time beyond what an ERCS action would require.
The directive also suggested Regional Superfund officials obtain
the support of the ERT and of the Agency's Response Engineering
and Analytical Contract employees to provide support in
developing the statement of work for a site-specific contract.
The Directive concluded that "...many good opportunities for
site-specific contracting are being overlooked. In each of these
cases, we could be saving valuable funds, as well as ERCS
capacity, that could be used for other removal actions."
We discussed the use of site-specific contracts with Regional
Superfund officials. The site-specific contract at Dayton Tire
and Rubber represented one of their two initial projects that
used site-specific contracts. They said another site-specific
contract was used more successfully at American Steel Drum in
Bedford Park, Ohio, because the site was easier to characterize
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and to perform a removal action. They also explained that an OSC
presented Region 5's difficulties in using a site-specific
contract at Dayton Tire and Rubber to a national OSC meeting.
In addition, the Regional Superfund officials could not ascertain
that the use of a site-specific contract at the Dayton Tire site
was cost effective. One supervisory official stated that, in his
opinion, the site-specific contract did not reduce the need for
contract supervision. He also believed it reduced the OSC's
ability to respond to changing site conditions by introducing
contract related limitations that are not present under a more
flexible ERGS contract. The site-specific contract led to some
less than optimal decisions by the OSC. For example, when the
OSC discovered additional PCB and asbestos contamination, he
tried to address only the heaviest contaminated areas because
removal amounts were limited in the contract. Under ERCS, the
OSC could have expanded the contract and addressed the additional
contaminated areas more quickly and efficiently.
Regional officials further explained they have not made greater
use of site-specific contracts because Superfund sites meeting
the criteria for site-specific contracts have not been available.
The Supervisor of Region 5's Emergency Response Branch (ERB)
explained that a site-specific contract will be used where the
cleanup work is well defined in an SOW and where the work is
significant enough to warrant a site-specific contract. Regional
Superfund officials also advised us they are currently planning
to use site-specific contracts at two new sites. Activities at
one site will begin in October 1989 and the other in the Spring
1990.
Conclusions
Region 5's use of a site-specific contract at Dayton Tire and
Rubber was not completely effective because the Region's initial
contamination study did not support a firm fixed price contract.
As a result, the site specific contract was not adequate to
completely cleanup wastes at the site.
Headquarters Superfund and Contracting officials believe that
site specific contracts are a key component of the Agency's
removal response strategy. Use of site specific contracts in
accordance with the Agency's April 1989 directive is therefore
needed for the Agency to determine the success of site-specific
contracts. Accordingly, Regional Superfund officials need to
work closely with contracting officials to ensure the proper type
of contract is awarded. They also need to ensure the extent of
contamination study is performed by EPA employees or a contractor
other than the cleanup contractor.
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The actions planned by the Region to continue the use of site-
specific contracts are appropriate. Regional Superfund officials
should follow the instructions in the Agency's April 1989
directive for using site-specific contracts.
Draft Report Recommendations
We recommended that the Regional Administrator take appropriate
action to require:
1. Superfund officials to follow the Agency's April 1989
directive regarding the use of site-specific contracts.
This includes a review each quarter for possible site-
specific contracting candidates during the update of the
removal Superfund Comprehensive Accomplishments Plan.
Superfund officials should work closely with contracting
officials to ensure that the proper type of site-specific
contract is awarded and that an appropriate degree of
contract flexibility is maintained.
2. EPA employees or a contractor, other than the cleanup
contractor, to prepare a detailed extent of contamination
study prior to preparing a statement of work and awarding
the contract.
Regional Reply To Draft
OIG Report Recommendations
In reply to our draft report, the Regional Superfund officials
agreed with our finding and stated they will take appropriate
action to implement our recommendations.
Regarding our first recommendation, officials explained that in
awarding the proper type of site specific contract, they will
maintain an appropriate degree of contract flexibility.
Regarding our second recommendation, Regional officials explained
this recommendation will apply to all sites, not only sites where
site specific contracts are used.
Auditor Comments
The Region's implementation of the recommendations will further
strengthen the Region's removal program.
Recommendation
We recommended the Regional Administrator take appropriate steps
to ensure Regional officials initiate and complete the specific
actions that are necessary to implement each recommendation. We
request the Regional Administrator provide us the documentation
to support the completion of each action.
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FINDING NO. 2 — Arfagnaite Search Fog Potential
Coat Recovery Efforts
A Region 5 contractor did not perform an efficient and timely
search for potentially responsible parties (PRPs), who were
responsible for PCS1 contaminated oil at Cam-Or. This condition
occurred primarily because the contractor copied Cam-Or records
that were not necessary for identifying PRPs. In May 1987, the
contractor began a project, lasting about a year, to photocopy
200 boxes of Cam-Or's records. In May 1988, after the contractor
had received about $100,000 of Agency funds for this project,
Regional employees determined that the photocopies would not
identify PRPs. Consequently, the contractor did not use Agency
funds efficiently and its inadequate PRP search delayed the
Region's effort to obtain reimbursement of over $2 million in
cleanup costs for over one year.
In June 1988, when additional funding became available, Regional
employees requested the contractor to perform a new search which
resulted in a PRP report. In December 1988, Regional attorneys
finally acquired this data from the contractor and sent
information request letters to 172 companies to determine
responsibility for hazardous wastes at Cam-Or. At the time we
completed our fieldwork in May 1989, Regional Counsel and
Regional Superfund personnel had not followed up with 77
companies who had not responded to the Region's letters.
Regional Counsel advised us they are sending follow up letters to
non-responders and to those whose response was inadequate.
We also found that the Region's ability to determine the adequacy
of contractor PRP searches, like the PRP search at Cam-Or, is
hindered because the Agency's National Enforcement Investigations
Center (NEIC) suspended a program to audit Regional contractors
performing PRP searches. For this program, NEIC used a
contractor who was experienced in performing PRP searches.
Although Regions can still request NEIC's contractor to perform
audits, Regional attorneys were not aware of this service. We
advised Regional Counsel's Chief of the Solid Waste and Emergency
Response Branch of this service. He believes audits of Region 5
contractors performing PRP searches can be useful and will inform
Regional attorneys.
In addition, our review shows Regional Counsel should provide
NEIC officials certain information regarding NEIC's contractor.
Region 5 had previously used NEIC's contractor to perform a PRP
search for another Superfund cleanup. Regional Counsel advised
us that NEIC's contractor performed poorly. This information
should be provided to NEIC officials for their consideration.
*PCB refers to polychlorinated biphenyls
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Aoencv Policy Emphasizes
Early PRP Searches
Current Superfund directives, in accordance with SARA, explain
that an important Agency objective is to begin a PRP search early
in the Superfund cleanup process. Early identification of PRPs
supports EPA's policy to secure cleanups by PRPs in lieu of using
Superfund. To accomplish this objective of identifying PRPs
early, EPA issued a "Potentially Responsible Party (PRP) Search
Manual" in May 1987 to EPA personnel and contractors for
conducting PRP searches. EPA's PRP Search Manual provides
detailed descriptions of different tasks performed in PRP
searches.
The Manual explains that, when contractors perform PRP searches
for the Agency, early and continuous communication with EPA
personnel involved with the site is required. The contractor
must be aware of:
The types of PRPs possibly involved with the site (owners,
operators, generators, transporters);
EPA's specific needs to support case development, such as
identifying only certain types of PRPs;
Information already available so as not to repeat previous
efforts.
A clear understanding of the type and detail of information
required for each search will allow the contractor to perform the
PRP search in an efficient and timely manner.
Contractors perform many PRP searches for EPA. A recent Senate
report2 explains that since enactment of SARA, EPA has used
contractors for most of its PRP searches. Accordingly, proper
oversight of contractors performing PRP searches is important to
early identification of PRPs. The sooner PRPs are identified and
notified about their potential responsibility, the more time they
will have to organize themselves to participate in cleanup
activities.
Our review of PRP searches for the two removals covered by our
audit showed that the search for PRPs at Dayton Tire and Rubber
was initiated by Region 5 in a timely and efficient manner. At
Dayton Tire and Rubber, Regional Superfund personnel issued an
Administrative Order to the owner on April 28, 1987, less than
one month after discovering the site.
2 Cleanup Up The Nation's Cleanup Program (Senate Subcommittee
On Superfund, Ocean and Water Protection, May 1989)
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The following section describes a contractor's PRP search for
Cam-Or which was neither timely nor efficient. A timely and
efficient search for PRPs was important because, in contrast to
Dayton Tire and Rubber, the owner of Cam-Or was not a financially
viable owner for purposes of issuing an Administrative Order.
Contractor Search for PRPs at Cam-Or
Included Copying Many Unnecessary Documents
The PRP search for Cam-Or shows that an EPA contractor did not
perform a timely and efficient PRP search. In April 1987,
Regional Superfund personnel awarded a contract for $23,850 to a
contractor to conduct a PRP search and compile records to
identify PRPs for Cam-Or. This project would support cost
recovery action for cleanup expenses incurred by EPA at the site.
Regional EPA officials initially estimated that 50 boxes of
pertinent company records needed photocopying. The contract
stated, however, that the estimated level of effort for the PRP
search was tentative because company records had not yet
been received. Accordingly, the contractor would review the
documents and advise EPA of any recommended revisions to the
estimated level of effort.
In May 1987, Regional personnel directed the contractor to begin
performing the several tasks necessary to identify the
generators, transporters, owners, and operators to support cost
recovery efforts, including taking possession of company
documents in accordance with an EPA demand letter to the company
owner. Regional employees recognized the importance of
completing the work quickly and requested the contractor to
provide a final report by July 31, 1987.
Our review of the contractor's Monthly Work Assignment Status
Reports, however, showed several problems with the search from
the beginning of the project which eventually delayed completion
of the PRP search report until September 1988. Among the most
serious problems occurred at the start of the project when
contractor employees discovered company records greatly exceeding
initial EPA estimates. The contractor submitted a revised cost
estimate on May 29, 1987 for about $100,000 which stated: "The
actual conditions encountered are significantly different from
those that were outlined in the U.S. EPA Technical Statement of
Work." The revised cost estimate explained the contractor had
identified 109 boxes of pertinent site records and 40 additional
boxes of cancelled checks.
The primary EPA employee in contact with the contractor advised
the contractor that the Agency wanted copies of all checks and
site records bringing the total number of boxes that needed
copying to 149. This total far exceeded EPA's initial estimate
of 50 boxes in the contractor's Statement of Work, which was the
basis of the contractors original work plan effort with an
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estimated cost of $23,850. The contractor's revised estimate
stated the contractor would not continue the project until EPA
approved additional funds.
We asked Regional officials about the necessity of photo copying
149 boxes of documents. Regional officials explained that
initially it was determined that all companies taking waste oil
to the site should be investigated. Consequently, the contractor
was directed to copy all documents which showed any transaction
of waste oil with Cam-Or. The contractor, in consultation with
EPA, also decided that if a document had more than one PRP name
it would show up on its own document (if a ledger book contained
six PRP names, then six copies of the same page would be made).
The following table summarizes the progress of the contractor's
work and outstanding issues through November 1988 when Region 5
accepted the contractor's draft report as final.
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PROGRESS OF CAM-PR PRP SEARCH
Date
05/31/87
07/31/87
10/31/87
12/31/87
04/30/88
05/31/88
08/31/88
11/31/88
Percent
Of Project
Completed
10
25
35
45
45
60
100
Contractor's
Outstanding Issues
Technical scope of work has been expanded. Amendment to Work
Assignment is required before work can proceed.
The photocopying of site records cannot resume until approval
of the revised cost estimate by EPA is received. A delay of
about 3 months is anticipated which will require extension of
the dates. (Note: Photocopying of documents resumed on
August 31, 1987, when EPA approved additional funds).
Photocopying of files is expected to continue into December 1987.
Sorting and organizing document copies is expected to take several
months. As a result, deliverable dates will have to be extended.
The copying effort has been completed. Sorting and organizing
document copies is expected to take several months.
The sorting and filing task has been suspended because funds were
depleted. No further action will be taken until more funds are
allocated. (Note: EPA personnel reviewed photocopies and decided
too much time and money would be needed to sort documents).
Of the 200 boxes in storage, about 100 contain usable material.
The size of the work assignment is much larger than originally
anticipated. (Note: Regional Counsel advised OIG that none of
the boxes contained useable material).
A draft PRP report was prepared.
The draft report has been accepted as a final report.
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BOXES OF PHOTOCOPIES OF CAM-OR RECORDS IN A WAREHOUSE
EPA paid the contractor about $100,000 for photocopies which
could not be used to identify responsible parties.
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The Regional attorney currently responsible for Cam-Or advised us
that in February 1988, Regional Superfund employees informed him
that the contractor's search had stopped because the contractor
spent all allotted funds without generating a report. Regional
Superfund employees advised the attorney that the contractor had
copied about 200 boxes of documents, but had succeeded in sorting
only about 10 boxes of documents before funds were exhausted.
The Regional attorney advised us that, in February 1988, he
contacted NEIC officials to see if they could help with the PRP
search. NEIC officials advised him that they would not take on
an assignment of sorting hundreds of boxes of documents.
Therefore, the case remained at a standstill for several months.
Our discussions with Regional Superfund employees showed that in
May 1988, they concluded that much of the contractor's
photocopying effort over the prior year was unnecessary because
the photocopies would not identify PRPs contributing PCB-
contaminated oil to the site. The contractor's effort is
summarized in the September 1988 draft Potentially Responsible
Party Search report:
Temporary laborers were hired to photocopy the 167 boxes of
material. Multiple copies of sheets were made if they
contained more than one company's name. After five months
were spent copying documents, the copies totaled
approximately 200 boxes due to the multiple copies that
were made.
It was decided that the documents which had been copied did
not contain information which would name PRPs contributing
PCBs, the contaminate of concern to the site, without
exhaustive work being performed. It was decided that Cam-
Or, Inc. documents should be examined again to find
evidence which would link companies to PCB-contaminated
oil.
The attorney currently responsible for Cam-Or said that in
consultation with NEIC, he requested a new PRP search. Funds to
commence a new search were not available until the end of June
1988.
From June 27, 1988 to July 1, 1988, EPA and contractor employees
searched again through Cam-Or records. By July 1, 1988, they had
reduced the pertinent documents to about thirteen boxes of
documents. The contractor then used these records to prepare his
draft report.
In September 1988, the contractor submitted to Regional Superfund
personnel a draft PRP report for Cam-Or. The draft report
identified parties which may have sold PCB-contaminated waste to
Cam-Or, Inc. for re-refining or disposal. Regional employees
accepted the draft report as final in November 1988.
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We discussed this issue with Regional personnel who agreed that
the PRP search at Cam-Or was not as efficient or as timely as the
search should have been. Officials explained the contractor
misdirected its activities. This resulted in a great deal of
ineffective activity and substantially delayed the completion of
the PRP search. One factor in this situation was inadequate
field supervision of the contractor's activities.
A Regional cost recovery supervisor also explained that employees
in the responsible party and cost recovery units have an average
of 40 sites assigned to each employee. Accordingly, the time
they have to monitor each site is limited. He also advised us
that Regional employees in contact with the contractor, at the
time the PRP search contract was first awarded, were new and also
were unsure of the information needed to identify PRPs. These
employees prepared a work assignment for the contractor which did
not adequately specify that records were needed to identify
companies contributing PCB-contaminated oil to the site.
Although this contractor had sent representatives to a brief
Agency PRP training course, a Regional employee who assisted with
this project explained the contractor did not have an experienced
employee in charge of the assignment. This also contributed to
the initial inefficient search for PRPs. At the start of the
second PRP search in June 1988, the Regional attorney visited the
site where records were and explained to the contractor and his
employees what specific records were needed for a PRP report.
Regional officials added that, during May 1987, when this action
was initiated, the Region had a separate enforcement section
which was responsible for both removal and remedial enforcement.
The Agency's primary representative on the site, the OSC, came
from the Removal Section and did not have direct responsibility
for the PRP search. OSCs, at this time, routinely conducted
small scale PRP searches to identify obvious PRPs, such as
owners, operators and large generators, but did not conduct
detailed PRP searches where many generators and a great deal of
effort were involved. As a result, the OSC did not provide
detailed supervision of the contractor's field activities and the
Enforcement Section did not have the presence in the field to do
so.
During April 1988, the Region reorganized and placed full
responsibility for removal enforcement in the Emergency and
Enforcement Removal Branch so that OSCs are now responsible for
all enforcement activities on a site. Regional officials believe
this has improved the level of on-site supervision of enforcement
contractor activities.
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Not All PRPs Have Responded
To Region 5's Information Requests
We also reviewed Regional Counsel records to determine the
current status of the PRP search for Cam-Or. They advised us
that because of the difficulties with the contractor's work, they
did not send information requests to PRPs for Cam-Or until
December 28, 1988. On that date, a Region 5 attorney sent
information request letters to 172 potential PRPs. Each letter
required a response within 30 days of receipt of the letter. At
the time we completed our fieldwork in May 1989, Region 5 had
received only 95 responses for review.
Our review shows Region 5 has a tracking system to monitor the
status of information request letters like those which were sent
to potential PRPs for Cam-Or. This system addresses a concern
in the May 1989 Senate subcommittee report (See page 22 of this
report) which recommended Regional offices when using information
request letters to obtain additional information about potential
PRPs, develop tracking systems to assure effective follow-up of
information requests. The report explains that such tracking
systems will enhance Agency cost recovery efforts.
Region 5 employees have used their tracking system to monitor the'
status of responses. At the time we completed our field work in
May 1989, a tracking system printout showed 77 potential PRPs,
which included several major corporations, had not responded to
Region 5's initial information request letters. Our review of
Region 5's tracking report shows, of the 77 non-responders, 32
had either moved with no forwarding address or the envelope was
returned indicating EPA had an insufficient address for the
potential PRP. The remaining 45 potential PRPs accepting the
letter either failed to respond or respond adequately. In
addition, of the nine companies that applied for and received a
time extension to respond, seven failed to meet their extended
deadlines.
Regional officials can take enforcement actions against companies
who do not respond to information request letters. Information
request letters for Cam-Or advised potential PRPs that a response
to the letter was mandatory within 30 days of receipt. Failure
to respond or to adequately justify such failure to respond could
result in enforcement action. EPA can seek up to $25,000 for
each day of non-compliance under Section 3008 of RCRA or $25,000
for each day of continued non-compliance under Section 104(e)(5)
of CERCLA.
The letters further added that non-compliance is considered not
only failure to respond but failure to respond completely and
truthfully. Fake, fictitious, or fraudulent statements are
subject to criminal penalties up to $10,000 or up to five years
imprisonment or both under 18 U.S.C.1001.
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In addition, the Agency's A Management Review of The Superfund
Program (June 1989) has also emphasized the importance of
information requests to (1) identify PRPs, and (2) obtain site
specific information. The study states the Agency will provide
for use of administrative orders and judicial referrals to compel
answers to information requests.
The Assistant Regional Counsel advised us that while the statute
does not require it, Headquarters, the regions, and U.S.
Department of Justice (DOJ) require that three information
requests (one initial letter plus two follow-ups) must be sent to
a PRP before a lawsuit is filed for not responding or responding
untruthfully. Furthermore, a lawsuit will not be filed in all
cases. A decision must be made concerning (1) what information
might be obtained pursuant to a lawsuit, (2) financial viability
of a PRP in collecting a penalty for non-compliance, and (3) time
available to both regional and DOJ attorneys to file such suits.
The Assistant Regional Counsel also explained that EPA may serve
a subpoena to obtain the needed information.
We discussed this issue with the appropriate Regional attorney
who explained he is following-up on potential PRPs not responding
to his initial information request. The attorney stated he will
give potential PRPs five days in which to respond. If they do
not respond, he intends to send second follow-up letters. He
also advised us that Regional Counsel plans to issue a unilateral
Administrative Order to potential PRPs in September 1989. If
there are problems with obtaining adequate information after two
follow-up letters have been sent, an assessment will be made to
see if it is appropriate to file lawsuits for non-compliance with
the requests, or possibly to subpoena the needed information.
The responsible attorney further advised us that the statute of
limitations for recovery of costs at the site will not run out
before December 1990. Regional Counsel may also seek a waiver so
that EPA can complete the cleanup of the site, in which case the
statute of limitations would not run out until December 1993. He
also explained that, where appropriate, he would initiate the
appropriate enforcement action against non-responders.
These planned actions are appropriate. In addition, we discussed
the status of the non-responders with Regional Counsel and
Superfund officials. They advised us that the Region has a
Responsible Party Unit which handles letters that are returned to
EPA. Personnel from the Region's Responsible Party Unit advised
us, however, they are not aware of the 32 non-responders in which
the company had either moved with no forwarding address or the
envelope was returned indicating EPA had an insufficient address
for the PRP. After we issued our draft report, representatives
from Regional Counsel and the Responsible Party Unit coordinated
to determine what additional action, if any, could be taken with
31
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these 32 companies. As a result, they found alternate addresses
for 10 companies and have sent information request letters to
these companies.
Audits of PRP Contractors Would
Ensure That Searches Are Adequate
We also discussed with Regional personnel their concerns with
other contractors that performed other PRP searches. This is an
important subject because the May 1989 report by the Senate
Subcommittee on Superfund, Ocean And Water Protection reported
that EPA used contractors for most of its PRP searches. Thus the
importance of conducting PRP searches in a timely and efficient
manner enhances the Agency's cost recovery efforts.
In December 1988, Regional Counsel advised us of other errors in
another contractor's work to assist in the identification of
responsible parties at another Superfund site. A quality
assurance review of this contractor's PRP search disclosed:
Of 94,000 transactions entered by the contractor into a
database, over 7,000 were duplications.
Weight ticket numbers were not all accounted for by the
contractor. Regional Counsel believed the missing tickets
are expected to have a dramatic effect upon PRP ranking
because tickets bearing generator or hauler names usually
represent a transaction of a substantially larger dollar
amount than other simple cash transactions. Regional
Counsel found no explanation for why generator and hauler
tickets were consistently omitted from the database by the
contractor.
Our review shows this contractor was used by NEIC in a program to
conduct audits of other contractors performing PRP searches.
NEIC's purpose in conducting these audits was to assist regions
in assessing the quality of contractor-performed PRP searches.
Audit results were provided to the regions to encourage internal
evaluation and site-specific follow-up. Audit results were also
provided to the Office of Waste Programs Enforcement (OWPE) for
use in a national program evaluation of the PRP search process.
In February 1989, an employee of NEIC's contractor advised his
Regional contracting staff that audits of PRP searches would be
discontinued until EPA issued a revised PRP Search Guidance
Manual. He explained, however, that NEIC in the interim could
perform PRP audits for the Regions on a request basis. The
contracting official requested the Regional contract staff inform
Regional attorneys of NEIC's service.
A Regional supervisory attorney advised us that neither he nor
other attorneys were aware that NEIC's contractor could still
audit PRP searches on a request basis. He believed such audits
32
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would be useful and intends to inform Regional Superfund
attorneys of NEIC's service. We believe this action is
appropriate and should help ensure that Regional contractor PRP
searches are timely and efficient. However, Regional Counsel
should forward information to NEIC officials regarding NEIC's
contractor poor performance. NEIC officials could use this
information to help ensure their contractor's performance is
satisfactory.
Conclusions
Region 5 Superfund officials needed to ensure that the work
assignment was specific enough for the contractor to perform an
efficient and timely search. They should also have ensured the
contractor placed an experienced employee in charge of the PRP
search. In the future, if less experienced contractor employees
are responsible for a PRP search, Regional Superfund officials
should provide closer oversight.
A PRP search is an essential, early step in the Agency's
enforcement process. Early identification of PRPs supports EPA
policy to secure cleanup by PRPs whenever possible. When a
contractor is conducting a PRP search, early and continuous
communication with EPA personnel involved with the site is
required. A clear understanding of the type and detail of
information required will permit the contractor to perform the
PRP search in an effective and timely manner.
After the PRP search is completed, vigorous enforcement of
information requests sent to PRPs serves several purposes.
First, it allows EPA to obtain information that is useful for
establishing liability cases, and helpful as well to PRPs in
generating acceptable settlement offers. Second, enforcement of
information requests provides an opportunity for the government
to pursue recalcitrants at an early stage. An early enforcement
action also encourages recalcitrants to participate in
negotiations. In addition, PRPs are more willing to settle when
they are assured that other parties are not escaping
participation by simply ignoring Agency information requests.
Regional attorneys should request audits of contractors
performing PRP searches when appropriate. In addition, Region 5
should forward to NEIC the information regarding their
deficiencies with NEIC's contractor performing audits of PRP
contractors. This will assist NEIC in determining whether its
contractor is performing adequate audits.
Draft Report Recommendations
We recommended that the Regional Administrator take appropriate
action to:
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1. Require Superfund employees to maintain early and .
continuous contact with Regional contractors so contractors
fully understand the type and detail of information
required of their PRP searches. This should include
ensuring the contractor places an experienced employee in
charge of the project. If a contractor places a relatively
inexperienced employee in charge of a PRP search, Regional
employees should maintain closer oversight of the
contractor's work and provide training.
2. Formally request that Regional Counsel send follow-up
letters to companies that did not respond to the Region's
initial information request letter for Cam-Or. After two
additional follow-up letters are sent appropriate
enforcement action, where feasible, should be taken against
non-responders.
3. Formally request that employees of the Regional Counsel and
the Responsible Party Unit coordinate to determine what
additional action, if any, can be taken on information
requests sent to 32 potential PRPs for Cam-Or, who did not
respond either because the potential PRP had moved with no
forwarding address or because EPA had an insufficient
address.
4. Formally request that Regional Counsel use NEIC services to
audit contractors performing PRP searches. Regional
Counsel should also forward to NEIC the information
regarding the contractor that NEIC uses to perform audits
of other contractors performing PRP searches.
Regional Reply To Draft
QIC Report Recommendations
In reply to our draft report, Regional officials agreed with our
finding. The following describes the actions they plan to take
or have taken to implement our recommendations.
1. Superfund employees will maintain early and continuous
contact with Regional contractors so that contractors will
fully understand the type and detail of information
required in their PRP searches. The Region will maintain
closer oversight of inexperienced contractors and provide
training to them.
2. We agree that it is proper to send follow-up 104(e)
letters. On September 19, 1989, a CERCLA Section 106
unilateral Administrative Order was mailed to seventeen
parties identified in the PRP Report. Also, quite a number
of PRPs have been identified, in addition to those being
named in the order, who are potential sources of cost
reimbursement to EPA for the money already spent on the
first phase of the removal at Cam-Or. However, we are
34
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waiting to issue notice and/or demand letters until we have
gathered more information from those who are being sent
follow-up 104(e) letters. The follow-up letters will be
sent very soon. We are also planning on referring this
recovery of the money already spent by the Agency, in the
first quarter of Fiscal Year 1990, which will be after the
issuance of the CERCLA Section 106 order to complete the
Cam-Or cleanup is resolved.
3. The NEIC contractor has already sent 104(e) letters to
those for whom an alternate address was found.
Unfortunately, forwarding addresses were not found for most
of those where the company was either out of business or
had moved. There is still a question about the possibility
of tracking down a couple of PRPs and this is being worked
on.
4. We agree to forward to NEIC, where appropriate, the
information required to audit the work of contractors who
perform unsatisfactory PRP searches.
Auditor Comments
The Region's intent to implement recommendations Number 1 and 4
will strengthen the Region's overall cost recovery efforts. The
actions taken and planned to implement recommendations 2 and 3
will enhance cost recovery efforts against those parties
responsible for hazardous wastes at Cam-Or.
Recommendation
We recommended the Regional Administrator take appropriate steps
to ensure Regional officials initiate and complete the specific
actions that are necessary to implement recommendations 1 and 4.
He should also ensure that planned actions in recommendations 2
and 3 are completed. We request the Regional Administrator
provide us the documentation to support the completion of each
action.
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FINDING NO. 3 - Asbestos Training For Superfund Employees
Will Help Ensure Worker Safety
An EPA Region 5 subcontractor did not conduct a major asbestos
removal project at Dayton Tire and Rubber in accordance with
regulations promulgated by the Occupational Safety and Health
Administration (OSHA) for asbestos removal. This condition
occurred because the contractor did not adhere to OSHA
regulations. In addition, the Regional On-Scene Coordinator
(OSC) did not have sufficient knowledge of asbestos worker
protection rules to allow him to determine the need for the
contractor to follow OSHA worker protection rules. Consequently,
the workers' risk of inhaling asbestos fibers increased when the
contractor violated OSHA worker protection rules by not properly
enclosing the work area and not ensuring employees followed
proper decontamination procedures. Medical studies of asbestos-
related diseases, such as asbestosis, lung cancer/ mesothelioma,
and other cancers, have revealed that the primary exposure route
is inhalation of asbestos fibers.
A 1987 survey of Regional offices by Headquarter Superfund
officials shows the need for Superfund employees to be aware of
asbestos regulations. This survey report stated there were over
50 asbestos Superfund sites of concern nationwide. The hazards
at these sites included friable asbestos insulation materials,
industrial processing wastes, asbestos-laden fill material, mine
tailings and unpaved roadways of asbestos bearing serpentine. As
a result, Headquarter Superfund officials have established an
asbestos workgroup to assist Regions when confronted with
asbestos hazards at Superfund sites.
We discussed this issue with Regional Superfund officials who
explained that during our review they initiated steps to train
OSCs in proper asbestos removal procedures. In addition, the
OSHA violations at Dayton Tire and Rubber have been corrected.
These actions are appropriate since Regional Superfund officials
anticipate friable asbestos will be a problem in the future
because they are increasingly cleaning improperly closed old
industrial buildings that will likely contain asbestos.
EPA Policy Recognizes Worker
Safety At Hazardous Waste Sites
Section 126 of SARA, and section 300.38 of the NCP, explain that
response actions at Superfund sites are subject to all applicable
Federal and State occupational safety and health laws. Federal
regulations issued by OSHA form the basis for the safety and
health protection of workers involved in hazardous substance
response activities.
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Specifically, OSHA has issued the "Hazardous Waste Operations and
Emergency Response Final Rule" (29 CFR 1910, March 6, 1989) which
sets forth the Federal requirements for safety and health
programs. OSHA has also issued "Safety and Health Regulations
for Construction" (29 CFR 1926) which sets forth the Federal
requirements for construction workers removing or encapsulating
materials containing asbestos.
OSHA regulations require that employers, like the Region 5
subcontractor performing asbestos removal work at Dayton Tire and
Rubber, shall:
Establish "negative - pressure enclosures" before commencing
asbestos removal, demolition, and-removal operations.
Ensure asbestos contaminated work clothing must be removed
in change rooms and placed and stored in closed, labeled
containers which prevent dispersion of the asbestos into the
ambient environment.
Perform monitoring to determine the airborne concentrations
of asbestos to which employees may be exposed. Employees
must be given the chance to observe monitoring, and affected
employees must be notified as soon as possible following the-
employees receipt of result.
Agency Superfund directives state an OSC must be cognizant of on-
site health and safety activities and is responsible for
monitoring Federal and contractor compliance with EPA and site
safety requirements and applicable Federal and State laws and
regulations. If an OSC discovers an infraction of safety
requirements, the OSC may call in OSHA or State inspectors to
review practices to ensure compliance.
Agency Superfund directives also state that because response
activities associated with each specific incident are unique,
standard procedures will often have to be adapted or modified to
meet the incident-specific requirements. For this reason, Agency
Superfund directives require a written safety plan for each
incident, which is to be distributed and posted at the Superfund
site. This should be done, if possible, before removal
operations begin at the site or as soon as possible thereafter.
EPA has also issued guidance for Superfund personnel to follow
when conducting hazardous substance response activities. For
example, EPA, the National Institute of Occupational Safety and
Health, OSHA, and the United States Coast Guard have jointly
developed the Occupational Safety and Health Guidance Manual for
Hazardous Waste Site Activities (October 1985) to provide
guidance for developing site-specific health and safety plans.
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Our review showed that' Region 5's contractor prepared a safety
plan in December 1987 for removal work at Dayton Tire and Rubber.
This safety plan described the site hazards, personnel protection
to be used, air monitoring programs, general safety rules,
decontamination procedures and emergency plans. The contract and
safety plan called for compliance with all applicable EPA and
OSHA recommended guidelines and regulations for asbestos
abatement work.
Significant Amount Of Asbestos
Found At Dayton Tire and Rubber
The volume of asbestos at Dayton Tire and Rubber was significant
as described in Regional records. Regional Superfund employees
further believed the large amounts of loose and friable asbestos
could be blown off-site through broken windows and open doorways.
A report by the cleanup contractor described the asbestos
contamination at the site.
Asbestos contamination is widespread at the Dayton Tire &
Rubber facility. Significant amounts of asbestos containing
material (ACM), were found [See page 39 for photograph].
The study showed that the first floor of almost every major •
building area has some type of ACM. Although the vast
majority of this ACM consists of pipe and boiler insulation,
other ACM at the site includes floor tiles, ventilation duct
insulation, and transite-type cooling-tower baffles.
At some locations, the ACM shows extensive deterioration due
to age, water damage (caused by roof leaks or other
sources), temperature extremes in the unheated buildings, or
intentional disturbance by unauthorized trespassers. Most
of the deteriorated material is friable. Floor debris was
usually found under deteriorated or friable ACM. The
deteriorated and friable materials have the potential for
release of significant amounts of airborne asbestos fibers
under certain conditions, (e.g., dry windy weather or any
type of disturbance).
The OSC believed that the contractor was not following OSHA
approved procedures for asbestos removal as described in the
contractor's Technical Proposal. The Technical Proposal was part
of the site specific contract. He explained that although he had
numerous meetings with the contractor, the OSC could not obtain
the contractor's cooperation in following the Technical Proposal.
Accordingly, in December 1987, he requested the assistance of the
Region's Technical Assistance Team (TAT) in evaluating the
asbestos removal practices of the asbestos contractor, including
potential safety issues.
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ASBESTOS CONTAMINATION AT DAYTON TIRE AND RUBBER
Asbestos debris on floor inside a building
39
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In January 1988, a member of .- :n 5's TAT inspected asbestos
removal activities at Dayton r. - and Rubber to determine
compliance with applicable ast.-^-os removal regulations. In a
February 1, 1988 report to Region 5's Chief, Emergency Response
Section, the TAT inspector found numerous violations, including:
Considerable amounts of asbestos debris handled without any
use of water to wet the material.
Windows, doorways, and adjacent areas were not isolated from
the work area by means of plastic isolation barriers.
The decontamination area fell short of basic requirements
requiring an equipment room, shower area, and clean room for
workers to enter and exit. Showers were not established at
the decontamination area, nor was equipment such as
respirators decontaminated, as evidenced by contaminated
equipment observed in the employee locker room.
Employees were observed wearing contaminated clothing home.
90% cr the contractor's employees using respirators were
using them improperly.
The inspector concluded that the absence of total containment in
areas of more widespread .contamination, could only result in the
contamination of adjacent areas of the facility.
In a February 19, 1988 letter to Region 5, an official of the
asbestos contractor explained that construction of a total
containment system was not possible because only small work areas
and limited amounts of asbestos were designated for cleanup. In
addition, the contractor believed the condition of the building
prevented a total containment system as outlined in the safety
plan.
OHSA Inspection Finds Violations
On February 23, 1988, an OSHA inspector inspected asbestos
removal activities at Dayton Tire and Rubber as the result of an
anonymous complaint. The OSHA inspector reported several serious
violations. A February 23, 1988 notice to Region 5's asbestos
contractor found:
The contractor did not establish proper enclosures where
feasible before commencing removal, demolition and
renovation operations.
The contractor did not ensure employees followed proper
decontamination area entry procedures.
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The contractor did not properly notify employees of the
results of monitoring representing the employee's exposure.
In addition/ records of employee exposure measurements were
incomplete.
As a result of the citation, the asbestos contractor subsequently
took steps to construct an adequate decontamination area and
agreed to comply with enclosure and other worker protection
requirements.
We discussed this incident with Regional Superfund personnel who
explained that neither the OSC nor the TAT employee had adequate
training regarding either OSHA or EPA regulations covering
asbestos abatement projects. This lack of training was also
recognized by the OSHA inspector. In a February 2, 1988 memo,
the Regional OSC stated the OSHA inspector believed the OSC was
not properly trained to oversee asbestos removal. As a result,
the OSC had difficulty recognizing the contractor's improper
removal procedures.
During the course of our review, Region 5 acted to ensure OSCs
receive training in proper asbestos removal. At the time we
completed our review, one OSC has completed an EPA approved
training course in all aspects of asbestos abatement. Also, in
March 1989, Regional OSCs received introductory asbestos training
including (1) EPA and OSHA regulations pertaining to asbestos,
(2) medical surveillance, (3) personal protective equipment (4)
proper asbestos removal and disposal procedures, and (5) common
contractor errors in removing waste. These actions by Region 5
should better ensure that asbestos removals at Superfund sites
are performed properly.
Conclusion
EPA's policy requires that for all Superfund financed response
actions, all Federal, State and contractor personnel involved are
required to comply with applicable Federal, State and local
occupational safety and health laws. Although OSCs are directly
responsible for their own staff, OSCs must be cognizant of on-
site health and safety activities. Asbestos is a problem which
may increase in significance as response actions continue to
clean up improperly closed industries. Region 5 has acted
appropriately to provide OSCs with training in proper asbestos
removal procedures. Regional officials should ensure all
currently employed OSCs receive this training and that new OSCs
also receive this training.
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Draft Report Recommendations
We recommended that the Regional Administrator:
1. Establish procedures that ensure contractors follow OSHA
asbestos regulations (29 CFR 1926.58) at sites where
workers are performing asbestos abatement work.
2. Require that all OSCs receive training in proper asbestos
removal procedures.
Regional Reply To Draft
OIG Report Recommendations
In reply to our draft report, Regional Superfund officials agreed
with our finding and explained they have initiated a program to
provide asbestos training for all OSCs. Three OSCs have received
a full 40 hour training course and eventually all will do so.
During February 1988, all Region 5 OSCs received a special 8 hour
briefing on asbestos procedures, which is not intended to replace
the full 40 hour course but is sufficient to enable OSCs to
recognize inadequate practices when they occur.
Auditor Comments
The Region's action to initiate a program to provide asbestos
training for all OSCs will help ensure that asbestos removal at
Superfund sites is performed properly.
We believe no additional procedures are required to ensure
contractors follow OSHA asbestos regulations since the Region has
a procedure requiring a safety plan be prepared for each removal
action. When applicable, the safety plan will call for
compliance with all applicable EPA and OSHA recommended
guidelines and regulations for asbestos abatement work.
Recommendation
We recommend the Regional Administrator take appropriate steps to
ensure all OSCs receive the full 40 hour asbestos training
course. We request the Regional Administrator provide us the
documentation to show that all OSCs have received or are
scheduled to receive this training.
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APPENDIX 1
Page 1 of 3
Dayton Tire And Rubber
Site Description And Background
Description
The Dayton Tire and Rubber site is a 37 acre site adjacent to
Wolf Creek, about 1.25 miles upstream of the Great Miami River,
within the City of Dayton, Ohio. Residences and businesses are
within 50 yards of the site. Dayton Tire and Rubber Company
operated a tire manufacturing facility there from the early
1940's to 1980 when the owners of the plant ceased operations.
In addition to manufacturing tires, Dayton Tire and Rubber also
manufactured other rubber products which involved the use of
solvents, waste oils and acids. Specific solvents used at the
plant during its 40 years of operation included, but were not
limited to, toluene, xylene, and benzene. In addition, banbury
sludge, alcohols, muriatic acid, and formaldehyde were widely
used throughout the facility.
The Dayton Tire and Rubber site is a large building, about 1600
feet long and 800 feet wide. Portions of the building are one,
two, three, and four stories in height with a basement under most
of the structure. The building houses about 37 large
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APPENDIX 1
Page 2 of 3
transformers inside interior vault rooms. The majority of the
transformers which have been dismantled, and burned, by copper
salvagers were contained in basement vaults. Associated with the
transformers are over 50 capacitors and several large oil filled
switches. There were eight 12,000 gallon storage tanks in the
basement, three buried railroad tank cars containing sludges,
many large mixing vats, several oil pumping transfer stations,
and about one hundred 55 gallon drums. The building also
contained thousands of feet of 8" and 12" stream lines which are
insulated with asbestos containing materials. Much of the
insulation had been torn down or had deteriorated and fallen off
the piping. A large network of roof and floor drains and sewers
exist. A small pump station drained the area beneath and around
the building.
On April 3, 1987, the Ohio Environmental Protection Agency (OEPA)
reported that there had been a release of up to 1,600 gallons of
oil from four large transformers into Wolf Creek in Dayton, Ohio.
Wolf Creek is a tributary to the Great Miami River. The
transformers were at the site of the Dayton Tire Company. The
area around the transformers was saturated with oil, and a slick
was on the stream. The concentration of PCB in the oil was
22,900 parts per million (ppm). The OEPA hired a contractor, who
boomed the stream and started to skim oil. It was clear that the
response would require more than $10/000 that the OEPA was
authorized to spend. Therefore, the OEPA requested assistance
from the United States Environmental Protection Agency (U.S.
EPA) .
Removal Action Activities
Within 24 hours, U.S. EPA and its contractors had responded to
OEPA's request. A Region 5 contractor was able to recover about
70 drums of an PCB oil/water mixture from the stream. During
this response, Regional and contract personnel determined that
additional PCB oils were leaking from the Dayton Tire Site into
Wolf Creek through an outfall structure from the site. To
minimize the potential for additional releases, EPA contractors
plugged the outfall structure with concrete and drained and
stored PCB oils from other existing transformers located in the
facility. At a later date, contractors removed about 200 cubic
yards of PCB contaminated soils from the banks and stream bed of
Wolf Creek. All of the PCB contaminated materials were stored at
the Dayton Tire Site while EPA contractors further evaluated the
site. EPA contractors collected and analyzed samples from
vaults, switch rooms, insulation from steam piping and from other
locations in the building and determined that PCB, and asbestos
contamination existed in the building.
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APPENDIX 1
Page 3 of 3
Additional actions taken by Region 5 to cle-'-.r.up wastes include:
Decontamination of roof areas and outside walls that were
contaminated when transformers located on the roof released
PCB-contaminated oil;
Decontaminate interior surfaces, including, walls, floor and
machinery;
Removal or secure all loose asbestos;
Sampling, removal and disposal of contaminated soils found
on the site;
Sampling of eight 12,000-gallon tanks, and disposal of
material when hazardous.
These actions were accomplished through a site specific contract
and the ERGS contract.
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APPENDIX 2
Page 1 of 3
Cam-Or
Site Description And Background
Description
The Cam-Or site is located in the City of Westville, Laporte
County, Indiana and encompasses about 13 acres. The Cam-Or site
is bordered by agricultural land to the south, with several
residences directly south of the site. About 3,000 people live
within a one mile radius of the facility.
Beginning in 1934, Cam-
Company, was a waste oi
collected, stored, and
linked by a network of
method included adding
metal contaminants and
oil. The oil was then
re-refined blended, and
oil.
Or, and its predecessor the Westville Oil
1 refinery. The refinery operation
refined waste oil in 12 on-site lagoons
pipes and pumps. The original treatment
sulfuric acid to settle out solids and
using solar evaporation to dewater the
pumped to the refinery area, where it was
packaged for use as a lubricant or motor
Several oil spills have occurred at the Cam-Or facility. In
1978, 35,000 gallons of oil and water flowed into a ditch. Two
other releases into the same ditch were reported; one of 1,000
gallons in 1980, and one of 2,500 gallons in 1983. In addition,
another release occurred in August 1983, when a retaining wall
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APPENDIX 2
Page 2 of 3
failure allowed 1,000 gallons of oil to discharge onto
agricultural land directly north of the site. This oil
reportedly contained PCBs.
In June 1984, EPA inspected Cam-Or to determine its compliance
with the Toxic Substances Control Act. Samples collected from
several lagoons showed levels of PCS contamination as high as 139
ppm. In January 1985, EPA filed a complaint against Cam-Or for
violating the TSCA regulations for storage, machinery, record
keeping, and disposal of PCBs. In addition, a civil penalty of
$85,000 was proposed.
A settlement was not reached with Cam-Or representatives until
July 16, 1986 when Cam-Or officials entered into a consent
agreement agreeing to cleanup two of the lagoons and to pay a
fine of $24,000. Cam-Or failed to proceed with planned cleanup
activities and began voluntary liquidation of all assets. The
company ceased operation in February 1987.
In February 1987, the U.S. EPA Waste Management Division was
notified of the impending facility closure. Subsequently, in
February 1987, the U.S. EPA Emergency Response Branch tasked the
Technical Assistance Team to conduct a site investigation and
assess the potential for an uncontrolled release of oil at the
unmanaged facility. The following actual and potential
threatening conditions were observed at the Cam-Or facility:
Actual or potential exposure to hazardous substances or
pollutants or contaminants by nearby populations, animals,
or the food chain;
Actual or potential contamination of drinking water supplies
or sensitive ecosystems;
Hazardous substances or pollutants or contaminants in drums,
barrels, tanks, or other bulk storage containers that may
pose a threat of release; and,
Weather conditions that may cause hazardous substances or
pollutants or contaminants to migrate or be released.
Reviews showed PCB contaminated oil was in lagoons which are
unlined, constructed of native sandy soil, and are not properly
reinforced posing a potential for release due to dike wall
failure. One such release had been documented, suggesting the
possibility of a reoccurrence. Storage of oil/water in open
surface impoundments, coupled with seasonal precipitation and the
pending shut down of Cam-Or's water treatment system, increases
the likelihood of an overflow of oil, releasing the material off-
site.
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APPENDIX 2
Page 3 of 3
Removal Action Activities
The Emergency Response Cleanup Service (ERCS) contractor, first
mobilized personnel and equipment to the Cam-Or site on March 23,
1987. Site activities included treating 4.76 million gallons of
water and excavating sludge from six lagoons and backfilling the
lagoons with on-site soils, fly ash, kiln dust, and lime. Two
lagoons were designated as sludge repositories: one for PCB-
contaminated oil and sludge and the other for non-PCB-
contaminated oil and sludge. The non-PCB-contaminated lagoon was
stabilized with fill. The PCB-contaminated lagoon, which
actually encompasses two lagoons, was covered with a polyethylene
membrane floating cover during the second mobilization. Two
additional contiguous lagoons, containing acidic sludge and
having higher reliefs were also covered with the polyethylene
cover.
On October 6, 1988, the inspectors from Indiana's Department of
Environmental Management (IDEM) during a routine inspection
observed oil and water migrating off site from a lagoon and the
refinery area. The IDEM immediately reported the spill to the
Emergency Response Branch of the U.S. EPA. In response, the U.S.
EPA mobilized its ERCS contractor to the site to mitigate the
threat. The contractor began pumping water from the refinery
area into on-site tanks. Absorbent pads and booms were deployed
in a ditch to prevent oil from migrating downstream. Other
activities during this mobilization included backfilling a
lagoon, removing oil and water from atop of the floating cover
and repairing holes in the floating cover.
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DATE
SUBJECT:
FROM:
TO:
SEP 26
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
19gg REGION V
Draft Audit Report No. E1SHD9-05-0019
Review of TV/o Significant Removal
Actions in Region V
Valdas V. Adamkus
Regional Administrator
Anthony Carrollo, Divisional Inspector General
for Audits, Northern Division
Thank you for the opportunity to comment on the audit findings in the
subject draft audit report. We have reviewed the audit report and
found it to be informative and useful. Our comments below refer to the
three findings in the audit report.
Finding No. 1
Awarding The Proper Type Of Site Specific Contract
Will Help The Region Achieve Efficient Removals
Region V concurs with this finding. As the report points out, the
Dayton Tire contract was one of the Agency's first experiences with
site specific contracting for removals. Region V, along with
Region TV, are pioneers in this area and we have learned a great deal
from our initial experiences.
The type of contract awarded was fixed price which is the least
flexible type of contract although, in theory, it is the most cost
effective. The value of flexibility was clearly illustrated at Dayton
Tire. The overall contracting strategy used on the site turned out to
be quite awkward but there is very limited evidence to show that it was
not cost effective. The extra costs were due to extra work that was
required. The only probable inefficiency was the result of
inappropriate decisions made by the OSC as a direct result of perceived
inflexibility of the fixed price contract. By their nature most
removal actions and most remedial actions require flexibility.
Experience has shown that, even though extensive reconnaissance work
has been done, conditions on sites can be quite different from what was
anticipated once the work gets under way. Our experience with the
other site specific contract, American Steel Drum, where an underground
pool that had been filled with waste was detected only after the
overlying material had been removed, is a clear example of this. A
great many removal actions that have occurred in Region V have
required extensive changes as they were implemented. In Region IV,
where they have implemented many Records of Decision (RODs) through
removal contracting mechanisms they have found that the RODs also
require extensive modification.
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EPA FORM 132M (REV 3-78)
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The ERCS contract, which is a time and materials contract that was
competitively procured, provides a great deal of flexibility. This
flexibility has been automatically applied at no administrative cost to
adapt to a wide variety of conditions at a large number of sites. The
value of this flexibility is perceived only when it has been removed.
Recommer^ai--ir)n rag, i - Ensure Superfund officials follow the
Agency's April 1989 directive regarding the use of site
specific contracts. This includes a review each quarter for
possible site specific contracting candidates during the update
of the removal Superfund Comprehensive Accomplishments Plan.
Superfund officials should work closely with contracting
officials to ensure that the proper type of site specific
contract is awarded.
Region V agrees with this recommendation and will take appropriate
action to implement it. However, we suggest that the following clause
be added ". ..and that an appropriate degree of contract flexibility is
maintained".
Recommenria-Mnn Mm. ? - Ensure that when site specific contracts
are used that EPA employees or a contractor, other than the
cleanup contractor, prepares a detailed extent of contamination
study prior to preparing a statement of work and awarding the
contract.
Region V agrees with this recommendation and will implement it.
Furthermore, it applies to all sites, not only sites where site
specific contracts are used. -
It has been policy in Region V to avoid the use of the ERCS contract
for extent of contamination studies due to the appearance of a conflict
of interest. At Dayton Tire, however, we were required by
circumstances to deliberately violate this policy. The Region has two
mechanisms for inplementing extent of contamination studies, TAT
special projects and the Emergency Response Team's contract. The TAT
contract was used for the initial evaluation of the site which led to
the under-estimations of the work required noted in the audit report.
It was recognized that very substantial additional extent of
contamination work was required, that this work would have to be done
under unusually difficult conditions inside a very large, complex and
dark building with no power, and that it was far beyond the normal
capacity of either of the available contracts.
The Region had two options: (1) To consecutively award two separate
contracts, the first to complete the extent of contamination study and
the second to perform the actual removal. This process would have
required 12 to 18 months, (2) combine the extent of contamination study
with the cleanup contract.
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The building cleanup portion of the Dayton Tire project was handled as
a non-time critical project because the work did not have to be done
within six months but there was still a compelling time factor
involved.
During the initial emergency action to control the discharge of PCB
oils to the creek, most of the roof drains on the building were plugged
to intercept further discharges from the roof. This meant that, during
the winter, ice and snow would accumulate on the flat roof more than
normal. The roof had been weakened by lack of maintenance and by age.
A portion of it had already partially collapsed. A heavy snow load
could have easily caused a general collapse of the roof which would
have greatly complicated the removal. It was imperative that the
removal start before the winter season.
The decision to combine the extent of contamination survey with the
cleanup contract was forced by circumstances.
Finding No. 2 Adequate Search for Potential Responsible Parties
Cost Recovery
Region V fully agrees with this finding. At the Cam-or (Westville Oil)
site the Region made appropriate provisions for a PRP search by making
a work assignment under the NEIC contract. Unfortunately the
contractor misdirected its activities which resulted in a great deal of
ineffective activity and substantially delayed the completion of the
PRP search. One factor in this situation was inadequate field
supervision of the contractor's activities.
During May 1987, when this action was initiated, the Region had a
separate enforcement section which was responsible for both removal and
remedial enforcement. The Agency's primary representative on the site,
the OSC, came from the Removal Section and did not have direct
responsibility for the PRP search. OSCs at this time, routinely
conducted small scale PRP searches to identify obvious PRPs such as
owners, operators and large generators but did not conduct detailed PRP
searches where many generators and a great deal of effort are involved.
As a result the OSC did not provide detailed supervision of the
contractor's field activities and the Enforcement Section did not have
the presence in the field to do so.
During April 1988 the Region reorganized and placed full responsibility
for removal enforcement in the Emergency and Enforcement Removal Branch
so that OSCs are now responsible for all enforcement activities on a
site. This has improved the level of on-site supervision of
enforcement contractor activities.
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The Region agrees that the audit in general is accurate. Tire PRP
search was delayed due to contractor and EPA inexperience, however,
this site offered some unique problems. T3ie Region had not dealt with
the oil exclusion clause in SARA before. The Region was trying to
evaluate how the clause applied at the Cam-or site. Initially it was
determined that all companies taking waste oil to the site should be
investigated. Consequently, the contractor was directed to copy all
documents which showed any transaction of waste oil with Cam-or. ine
operator of the site indicated that in order to determine which
companies sent PCBs to the site the lab records would have to be
linked with the invoices of the in-ccming shipments of oil. A cursory
review by the contractor indicated that the records were not complete
and the source of PCB shipments could not be determined.
The contractor, in consultation with EFA, decided that if a document
had more than one PRP name it would be copied so each PRP name would
show up on its own document (if a ledger book contained 6 PRP names,
6 copies of the same page would be made) . These documents were not
sorted in any way. When the copying was finished the documents were to
be sorted by PRP. It was estimated to take several months to complete
-this task.
The Region re-evaluated its position on targeting all companies sending
waste oil to the site and decided that it should really be targeting
PRPs who sent PCB contaminated oil to the site. In order to do this
the original records would have to be reviewed to determine if there
is some evidence linking PCBs to specific companies, or shipments.,
After a review of the originals it was determined by EPA staff that
there is some evidence indicating which companies might have generated
PCBs. This information was obtained from lab ledgers. The invoices of
the companies identified as possibly generating PCBs were then copied
and sorted by PRP. This is the information the EPA is using as the
basis for the 104 (e) Information Requests.
NO. i - Region V agrees with and will implement
your reccmnendation that Superf und employees maintain early and
continuous contact with Regional contractors so that
contractors will fully understand the type and detail of
information required of their PRP searches. The Region will
maintain closer oversight of inexperienced contractors and
provide training to them.
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Mb. 2 - We agree that it is proper to send
follow-up 104 (e) letters. On September 19, 1989, a CERCLA
Section 106 unilateral Administrative Order was mailed to
seventeen parties identified in the PRP Report. Therefore, the
PRP Report and first round of 104(e) letters are serving their
intended purpose. Also, quite a number of PRPs have been
identified, in addition to those being named in the order, who
are potential sources of cost reimbursement to EPA for the
money already spent on the first phase of the removal at
Cam-or. However, we are waiting to issue notice and/or demand
letters until we have gathered more information from those who
are being sent follow-up 104 (e) letters. The follow-up letters
will be sent very soon. We are also planning on referring this
case for the filing of a CERCLA Section 107 lawsuit, for the
recovery of the money already spent by the Agency/ in the first
quarter of Fiscal Year 1990 , which will be after the issuance
of the CERCLA Section 106 order to complete the Cam-or cleanup
is resolved. We believe that our actions have satisfied
Recommendation No. 2.
Reconinerirteition NO. 3 — The NEHC contractor has already sent
104 (e) letters to those for whom an alternate address was
found. Unfortunately, forwarding addresses were not found for
most of those where the company was either out of business or
had moved. There is still a question about the possibility of
tracking down a couple of PRPs and this 'is being worked on.
No- 4 - We agree to forward to NEIC, where
appropriate, the information required to audit the work of
contractors who perform unsatisfactory PRP searches.
Finding No. 3 A-ghagi-ns Training for Superfund Employees Will Help
Insure
Region V fully concurs with this finding. The Dayton Tire site is the
first site where the Regional Removal Program became involved with
extensive asbestos removal from a building. This is because the
Superfund Amendments and Reauthor i zat ion Act (SARA) prohibits removals
of materials that are part of buildings which would normally include
asbestos. Training of OSCs in asbestos removal, therefore, was not
considered a high priority.
The Dayton Tire project presented an unusual circumstance. The
building contained a great deal of asbestos insulation which had been
severely damaged by vandalism, by inappropriate salvage operations and
by water leaking into the building. As a result, large volumes of
asbestos containing debris were on the floor and hanging from pipes.
Much of this material had been crushed by vehicles and was in a highly
friable state. As a result, it presented a hazard both to any workers
in the building as well as to the surrounding community. There were
large openings in the structure caused by thousands of broken windows
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as well as large doorways for freight. Strong drafts blew through the
building which could easily carry asbestos particles into the
surrounding community so that the problem had to be addressed by the
removal program.
The contractor who was awarded the site specific contract included an
excellent section on asbestos removal in his proposal which was, in
part, responsible for this superior technical rating. Unfortunately,
the contractor did not implement those procedures in the field. The
OSC, recognizing that a problem existed, requested that personnel from
TAT and ERT, experienced in asbestos removal, review the contractor's
practices. An OSHA inspection was also made which found significant
violations. As a result of these inspections the OSC took action to
correct the violations.
The Region believes the OSC acted appropriately by getting expert
advice regarding asbestos removal practices. There is no doubt,
however, that if the OSC had full asbestos training himself, he could
nave acted more promptly to correct he contractor's practices and could
have avoided the OSHA violations. The Region, therefore, has initiated.
a program to provide asbestos training for all OSCs. Three (3) OSCs
have received the full 40 hour training course and eventually all will
do so. During February 1988 all Region V OSCs received a special
8 hour briefing on asbestos procedures which is not intended to replace
the full 40 hour course but is sufficient to enable OSCs to recognize
inadequate practices when they occur.
Valdas V.
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