\
i
U.S ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF INSPECTOR GENERAL
Catalyst for Improving the Environment
Evaluation Report
EPA Region 8 Needs to
Better Manage the
Risk Management Program for
Airborne Chemical Releases
Report No. 09-P-0130
March 30, 2009
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Report Contributors:
Rick Beusse
Bao Chuong
Jim Hatfield
Erica Hauck
Rebecca Matichuk
Abbreviations
CAA Clean Air Act
CFR Code of Federal Regulations
ECEJ Office of Enforcement, Compliance, and Environmental Justice
EPA U.S. Environmental Protection Agency
EPCRA Emergency Planning and Community Right-to-Know Act
EPR Office of Ecosystems Protection and Remediation
FY Fiscal Year
MOU Memorandum of Understanding
OECA Office of Enforcement and Compliance Assurance
OEM Office of Emergency Management
OIG Office of Inspector General
RMP Risk Management Plan
SEE Senior Environmental Employment
Cover photo: Damage from a 2007 flash fire at an RMP-regulated natural gas processing
facility in EPA Region 8. (EPA Region 8 photo)
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U.S. Environmental Protection Agency
Office of Inspector General
At a Glance
09-P-0130
March 30, 2009
Why We Did This Review
The purpose of the Clean Air
Act (CAA) Risk Management
Program is to reduce the
likelihood of airborne
chemical releases that could
harm the public, and mitigate
the consequences of releases
that do occur. During our
evaluation of U.S.
Environmental Protection
Agency (EPA) implement-
tation of this program, we
identified concerns with EPA
Region 8's coordination and
management of the Program
that require the attention of
Region 8 management.
Background
Under the CAA Section 112(r)
Risk Management Program,
stationary sources that contain
more than the threshold
quantity of any of the
regulated substances on-site in
a process must implement a
risk management program.
Within Region 8, the Office of
Ecosystems Protection and
Remediation (EPR) and the
Office of Enforcement,
Compliance, and
Environmental Justice (ECEJ)
are jointly responsible for
implementing the Program.
For further information,
contact our Office of
Congressional, Public Affairs
and Management at
(202)566-2391.
To view the full report,
click on the following link:
www.epa.qov/oiq/reports/2009/
20090330-09-P-0130.pdf
EPA Region 8 Needs to Better Manage the Risk
Management Program for Airborne Chemical Releases
What We Found
The two Region 8 offices jointly responsible for implementing the CAA 112(r)
Risk Management Program have not effectively planned or coordinated
compliance assurance activities. Further, regional operating guidance for the
Program is inconsistent concerning the roles and responsibilities of each office.
Consequently, over half of the high-risk facilities have never been audited or
inspected, while duplicative oversight activities have been performed at lower-risk
facilities. Further, cases of identified noncompliance remain unresolved.
Based on criteria such as amount of covered chemicals stored on-site and potential
population exposed during a worst-case scenario, we identified 61 high-risk
facilities in Region 8. The Region had never inspected or audited 38 of these 61
high-risk facilities (62 percent) since the Program's inception in 1999.
Cumulatively, these 38 high-risk facilities could potentially impact over one
million people during a worst-case chemical release. Although 38 high-risk
facilities had never been audited or inspected, 59 lower-risk facilities received
duplicative oversight by being both audited and inspected by the Region.
We reviewed nine cases that EPR referred to ECEJ for possible enforcement
action because the facilities failed to certify they came into compliance after a
program audit found noncompliance. ECEJ concluded that no enforcement action
could be taken and returned the cases. Two of the facilities eventually certified
they had come into compliance. However, no follow-up actions were taken by
either office for the remaining seven facilities, and their compliance status has
been unresolved for over 2 years. Cumulatively, these seven facilities could
impact over 10,000 people in a worst-case chemical release scenario. Compared
to other regions, Region 8 has taken fewer CAA Section 112(r)-related
enforcement actions, and none have been taken at high-risk facilities.
Region 8 has partnered with North Dakota to gain assistance in oversight activities
at RMP facilities. Since 2004, North Dakota has assisted Region 8 by conducting
40 audits at agricultural ammonia facilities.
What We Recommended
We recommended that the Regional Administrator develop (1) a strategy for
implementing the Risk Management Program in Region 8 that defines program
goals, performance measures, and organizational responsibilities; and (2) an
oversight process to evaluate the Region's success in implementing the strategy.
Region 8 agreed with our findings and recommendations, and has already
completed the recommended actions.
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o
z
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF
INSPECTOR GENERAL
MEMORANDUM
SUBJECT:
FROM:
TO:
March 30, 2009
EPA Region 8 Needs to Better Manage the Risk Management Program for
Airborne Chemical Releases
Report No. 09-P-0130
Wade T. Najjum j
Assistant Inspector General for Program Evaluation
Carol A. Rushin
Acting Regional Administrator, EPA Region 8
This is our report on the subject evaluation conducted by the Office of Inspector General (OIG)
of the U.S. Environmental Protection Agency (EPA). This report contains findings that describe
the problems the OIG has identified and corrective actions the OIG recommends. This report
represents the opinion of the OIG and does not necessarily represent the final EPA position.
Final determinations on matters in this report will be made by EPA managers in accordance with
established audit resolution procedures.
The estimated cost of this report - calculated by multiplying the project's staff days by the
applicable daily full cost billing rates in effect at the time - is $157,141.
Action Required
In accordance with EPA Manual 2750, we are closing this report upon issuance in our tracking
system since your response to the draft report provided corrective actions that meet the intent of
the draft report's recommendations. In accordance with OIG policy, we will periodically follow
up to determine how well the Agency's corrective actions have addressed the report's
recommendations. We have no objections to the further release of this report to the public.
This report will be available at http://www.epa.gov/oig.
If you or your staff have any questions regarding this report, please contact me at (202) 566-0832
or najjum.wade@epa.gov, or Rick Beusse at (919) 541-5747 or beusse.rick@epa.gov.
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EPA Region 8 Needs to Better Manage the Risk 09-P-0130
Management Program for Airborne Chemical Releases
Table of Contents
Purpose 1
Background 1
Noteworthy Achievements 3
Scope and Methodology 3
Results of Review 4
Conclusions 8
Recommendations 8
Region 8 Comments and OIG Evaluation 8
Status of Recommendations and Potential Monetary Benefits 9
Appendices
A Details on Scope and Methodology 10
B Region 8 Response to Draft Report 12
C Distribution 21
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09-P-0130
Purpose
In November 2007, the Office of the Inspector General began an evaluation of the U.S.
Environmental Protection Agency's (EPA's) implementation of the Clean Air Act (CAA)
Section 112(r) Risk Management Program. The purpose of the Risk Management Program is to
reduce the likelihood of airborne chemical releases that could harm the public, and mitigate the
consequences of releases that do occur. The objectives of our evaluation were to determine
whether (1) procedures are in place to ensure that facilities subject to the Risk Management
Program regulations have submitted risk management plans (RMPs), and (2) the inspection
process provides reasonable assurance that covered facilities comply with Risk Management
Program requirements. Although we issued our report on EPA's overall Program performance in
February 2009,l we are issuing this separate evaluation report due to specific concerns we
identified in Region 8.
Background
In 1990, Congress amended CAA Section 112 to enact a program to prevent releases of certain
hazardous chemicals and to mitigate the consequences of releases to the surrounding community.
EPA promulgated the Risk Management Program rule (40 Code of Federal Regulations Part 68)
in 1996 to meet the requirements of CAA Section 112(r)(7). Under the Program, stationary
sources that contain more than the threshold quantity of any of 140 regulated substances
(77 toxic and 63 flammable substances) in a process are required to conduct a worst-case release
assessment, and to prepare and submit a risk management plan (RMP) to EPA. Facilities were
required to submit their first RMPs by June 21, 1999, and update them at least every 5 years or
when on-site regulated substances or processes change. The Program regulations (40 CFR
68.220) also require implementing agencies to periodically audit facility RMPs and require
revisions when necessary to ensure compliance with the requirements for RMPs. These audits
are referred to as 68.220 audits.
Since very few States and local agencies have requested delegation of the Program, EPA is
responsible for implementing the Program in most areas. None of the States in Region 8 have
taken delegation, so the Region is directly responsible for all RMP facilities in the Region.
EPA's Office of Emergency Management (OEM) in the Office of Solid Waste and Emergency
Response is primarily responsible for managing the Program on a national level. OEM provides
funding to the regions to assist in implementing the Program. Implementation activities include
conducting audits and inspections, and providing technical assistance, outreach, and training.
OEM also provides guidance to the regions regarding the Program's priorities and inspection
strategies. In 2007, OEM distributed a list of high-risk facilities to the regions to encourage
more effective use of the Program's resources and to help the regions better prioritize their
inspection efforts. However, the regions are not required to inspect these higher-risk facilities
before lower-risk facilities. Depending on the facility, the population potentially impacted in a
worst-case release scenario ranges from zero to over 1.7 million for a single facility in Region 8,
as reported in facility RMPs contained in the RMP National Database.
1 EPA Can Improve Implementation of the Risk Management Program for Airborne Chemical Releases, Report No.
09-P-0092, February 10, 2009.
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09-P-0130
The Office of Enforcement and Compliance Assurance (OECA) sets performance expectations
for Risk Management Program compliance assurance activities. OECA's National Program
Manager Guidance for Fiscal Year (FY) 2009 states that regions should conduct Risk
Management Program inspections at 5 percent of the total number of regulated facilities in the
Region each fiscal year, and may include periodic 68.220 audits as part of their compliance
program. According to OECA and OEM staff, RMP inspections conducted under CAA section
1142 authority are more comprehensive than 68.220 audits and can result directly in enforcement
actions. As the Program matured, EPA's oversight emphasis has moved from 68.220 audits to
federally-enforceable inspections. OECA includes only on-site inspections - not 68.220 audits -
in its performance measure for the Risk Management Program, while OEM includes both on-site
inspections and on-site 68.220 audits in its performance measures.
Risk Management Program Organization and Responsibilities in Region 8
In Region 8, two separate offices jointly implement the Risk Management Program under a
Memorandum of Understanding (MOU) issued in 1997. According to the MOU, the Office of
Ecosystems Protection and Remediation (EPR) is responsible for conducting Risk Management
Program audits (i.e., 68.220 audits) and the Office of Enforcement, Compliance, and
Environmental Justice (ECEJ) is responsible for conducting all Section 112(r) inspections in the
Region. The 1997 MOU also states that:
• EPR will coordinate all planned RMP audits with ECEJ;
• any serious compliance and enforcement-related matters encountered during an RMP
audit will be discussed as soon as practicable and referred to ECEJ for investigation and
possible enforcement action;
• ECEJ will conduct all RMP Section 112(r) inspections; and
• the Region will develop a protocol for interactions between EPR and ECEJ regarding
RMP audits and investigations.
In 2004, Region 8 issued an Implementation Protocol (Interim Final) describing coordination
activities between the two offices. The Protocol states that:
• inspections conducted by EPR must always be coordinated with ECEJ;
• RMP audits conducted by EPR can result in a Preliminary Determination Letter, which
establishes deadlines for audited facilities to correct deficiencies;
• facilities missing one or more established deadlines documented in a Preliminary
Determination Letter should always be referred to ECEJ for enforcement action, and
when a referral is made, ECEJ and EPR will meet to discuss the best approach for
addressing the noncompliance;
2 Section 114 of the CAA provides EPA with the broad authority to inspect facilities for compliance with CAA
requirements.
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09-P-0130
• EPR should coordinate requests and referrals to ECEJ via e-mail or an internal
memorandum that includes a brief summary of the situation and audit results; and
• when ECEJ receives a referral from EPR, ECEJ will evaluate the referral and input the
results of this evaluation into a Coordination Table located on the shared drive.
Allocation of Risk Management Program Resources in Region 8
EPR and ECEJ share the Risk Management Program resources provided to the Region from
Headquarters. OEM provides the Region with funds to implement both the Risk Management
Program and the Emergency Planning and Community Right-to-Know Act through the same
account. The Region receives about $150,000 annually in extramural funds to implement both
programs. These funds are shared by EPR and ECEJ. The amount of funds received by ECEJ
has increased from $9,000 in FY 2005 to $50,000 in FY 2008. In FY 2007 and FY 2008, EPR
received an average of slightly more than two-thirds ($104,500/year) and ECEJ received an
average of almost one-third ($45,500/year) of the extramural funds.
The Region also receives funding for 2.5 full-time equivalents (FTEs) from OEM for both the
Risk Management Program and the Emergency Planning and Community Right-to-Know Act.
According to EPR managers, 2.0 FTEs were assigned to EPR.3 OEM also funds five Senior
Environmental Employment (SEE) Program employees in Region 8 to perform activities
supporting several different programs, including the Risk Management Program. Four of the
SEE employees are allocated to EPR and one is used by ECEJ to conduct inspections at RMP
facilities. According to the former RMP Team Lead in EPR, the cumulative amount of time that
the four SEE employees in EPR spend on Risk Management Program activities during a year is
approximately equal to one full-time person. The SEE employees' remaining time is spent on
other programs.
Noteworthy Achievements
Region 8 has partnered with North Dakota to conduct RMP audits of agricultural ammonia
facilities. In 2004, EPR entered into an MOU with North Dakota's Departments of Agriculture
and Insurance, under which the State conducts RMP audits at anhydrous ammonia storage
facilities. Following the implementation of the MOU, EPR managers and staff told us that the
State inspectors in North Dakota were trained to conduct audits at agricultural ammonia
facilities. Although the MOU was not a delegation of authority under the Risk Management
Program, EPR staff told us that the State has expressed interest in proceeding with delegation of
the Program for agricultural ammonia facilities. Since 2004, North Dakota has assisted
Region 8 by conducting 40 audits at RMP facilities.
Scope and Methodology
For our nationwide evaluation of EPA's implementation of the Risk Management Program, we
interviewed staff and managers from EPA's OEM, OECA, Office of Air and Radiation, 10 EPA
3 EPR could not account for the remaining 0.5 FTE funded by OEM. ECEJ managers said they did not receive the
0.5 FTE. The Region had not resolved the allocation and usage of the 0.5 FTE as of November 2008.
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09-P-0130
regions, and 4 States with delegation of the Risk Management Program. We issued this report on
February 10, 2009. As part of the nationwide evaluation, we conducted work in Region 8, where
we identified several concerns with the Region's management of the Program. During our review
of the Program in Region 8, we interviewed EPR and ECEJ staff and managers and reviewed
guidance, procedures, budget reports, and other materials regarding the implementation of the
Program by these offices. We obtained lists of audits and inspections completed since the
inception of the Program from both EPR and ECEJ. We compared the lists of audits and
inspections completed in Region 8 to the RMP National Database and the lists of high-risk
facilities to identify facilities that have never been audited or inspected in Region 8. We also used
the lists provided by EPR and ECEJ to track the referral process and coordination efforts between
the two offices. We conducted our work from January 2008 to February 2009. Additional
information on our scope and methodology is in Appendix A.
Results of Review
Region 8 has not managed the Risk Management Program efficiently or effectively. Two offices
in Region 8 - EPR and ECEJ - are tasked with implementing the Program. However, these
offices have not effectively coordinated their planning and compliance assurance activities. As a
result, over half of the Region's 61 high-risk facilities have never been audited or inspected by
the Region, while 59 lower-risk facilities were both audited and inspected. Further, seven cases
of noncompliance identified through audits remained unresolved for more than 2 years, and the
Region has taken a lower number of CAA 112(r)-related enforcement actions than other EPA
regions.
EPR and ECEJ Have Not Effectively Coordinated Program Efforts
EPR and ECEJ have not coordinated activities and planning to best utilize resources and provide
compliance assurance at RMP facilities. Although the Region has an MOU and an
Implementation Protocol that outline the two offices' responsibilities and coordination
procedures, neither office was consistently following the MOU or Implementation Protocol, and
the two documents provided inconsistent guidance regarding each office's roles and
responsibilities.
The 2004 Implementation Protocol states that "normal coordination" should occur between EPR
and ECEJ, and that the two offices will have coordination meetings on an "as needed" basis to
discuss issues of importance to either or both groups. However, coordination between the two
offices was not sufficient to effectively manage the Program. EPR and ECEJ did not coordinate
their compliance assurance activities to ensure that high-risk facilities are inspected or audited.
Rather, each office planned its activities independent of the other and maintained separate lists
outlining the facilities they planned to visit. The list of RMP facilities each office planned to
audit or inspect was posted on the Region's shared drive so both offices could view the lists.
However, this was the extent of planning coordination between the two offices.
The lack of coordination between the two offices continued during our field work. For example,
in May 2008, EPR began conducting inspections under CAA Section 114 authority without
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09-P-0130
informing or coordinating with ECEJ.4 Coordination is particularly necessary when EPR
conducts inspections because ECEJ may have to take enforcement actions on the deficiencies
identified during those inspections. However, EPR and ECEJ disagreed on whether EPR staff
should be conducting RMP inspections, and the MOU and Implementation Protocol contain
conflicting information regarding responsibility for inspections. Specifically, the MOU states
that "all Section 112(r) inspections will be conducted by 8ENF-T [ECEJ]." In contrast, the
Implementation Protocol allows for inspections by EPR, but states that inspections conducted by
EPR "must always be coordinated" with ECEJ.
Further, EPR and ECEJ were not coordinating cases referred from EPR to ECEJ for possible
enforcement action as outlined in the Implementation Protocol. According to the Protocol, EPR
and ECEJ have shared responsibility to maintain a Coordination Table on the Region's shared
drive that tracks the progress and outcome of enforcement referrals. However, this was not
occurring at the time of our evaluation.
Majority of Region 8 High-Risk Facilities Not Audited or Inspected
Program guidance from OECA encourages regions to address public safety concerns by targeting
RMP inspections based on several risk-related factors. However, Region 8 has duplicated its
oversight efforts by conducting both audits and inspections at mostly lower-risk facilities, while
the majority of the high-risk RMP facilities have never been audited or inspected since the
Program's inception in 1999.
Using three separate criteria, we identified 61 high-risk RMP facilities in Region 8.5 Between
January 2000 and January 2008, Region 8 conducted audits at 519 facilities, but only 21 of those
were high-risk facilities. Additionally, Region 8 conducted inspections at 86 RMP facilities, but
only 9 of those were high-risk facilities. However, 7 of the 9 high-risk facilities inspected by
ECEJ had previously been audited by EPR. Thus, 23 of the 61 high-risk facilities have been
audited and/or inspected, while 38 (or 62 percent) have never been audited or inspected (see
Table 1). Cumulatively, the 38 high-risk facilities that have not been audited or inspected could
potentially impact over one million people during a worst-case chemical release.
Table 1: Audits and Inspections at the 61 High-Risk Facilities in Region 8, through January 2008
No. of
High-Risk
Facilities
61
No. of
High-Risk
Facilities
Audited
21
No. of
High-Risk
Facilities
Inspected
After an Audit
7
No. of
High-Risk
Facilities
Inspected
Only
2
No. of
High-Risk
Facilities
Audited and/or
Inspected
23
No. of
High-Risk
Facilities
Never Audited
or Inspected
38
Source: OIG list of high-priority facilities in Region 8 and audit and inspection data provided by Region 8
An EPR manager told us in November 2008 that EPR was no longer conducting RMP inspections and would wait
until EPR and ECEJ jointly developed a strategy for the Program before conducting RMP inspections in the future.
5 These 61 facilities appeared on one or more of the following lists: OEM's list of high-priority facilities; the top
5 percent of facilities in terms of hazard indices; and facilities that could potentially impact 100,000 people or more
in a worst-case release scenario.
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Although most high-risk facilities have not been audited or inspected, many lower-risk facilities
have been both audited and inspected. ECEJ had inspected a total of 86 RMP facilities since the
inception of the Program, and 65 (or 76 percent) of these were facilities that had previously been
audited by EPR. In addition, one of the facilities that EPR audited was previously inspected by
ECEJ. Thus a total of 66 facilities have been both audited and inspected. The majority of these
66 facilities (59 out of 66, or 89 percent) were lower-risk facilities; i.e., facilities that did not
appear on any of the three high-risk facility lists discussed earlier.
In FY 2007, OECA instituted a performance target for each region to inspect 5 percent of its
RMP facilities per year. This target does not consider whether the facilities are high-risk
facilities. Although Region 8 was on track to meet this target in FY 2008, 37 of the 39 facilities
(or 95 percent) that the Region had inspected in FY 2008 were lower-risk facilities.6 The RMP
Enforcement Coordinator told us that ECEJ had been focusing inspections on smaller, less
complex facilities because of the relative inexperience of the inspectors. She also expressed
concerns that ECEJ may not have sufficient resources to start conducting inspections and taking
enforcement actions at larger, more complex facilities.
Accident data suggest that never-inspected high-risk facilities are more than 5 times as likely to
have an accident as never-inspected lower-risk facilities. The higher accident rate for never-
inspected high-risk facilities suggests the need to prioritize inspections based on risk. Without
procedures in place to prioritize the inspections at these high-risk facilities, Region 8 may not be
using its resources efficiently to ensure that high-risk facilities are complying with the Risk
Management Program requirements. As a result, these facilities may not be taking measures to
operate safely, thus putting the public, employees, and first responders at a higher risk in the case
of an accident.
Compliance Status of Some Referred Facilities Remains Unresolved
The compliance status of seven RMP facilities audited by EPR and then referred to ECEJ
remained unresolved after more than 2 years. In addition, the case files for some of the referred
cases we reviewed were incomplete because the files did not include documentation that the
cases were referred to and/or reviewed by ECEJ or that the compliance status of the facility had
been resolved. Failure to resolve noncompliance at facilities could increase the risk of an
accident and public exposure to airborne chemical releases.
At the beginning of our evaluation, EPR provided us a list of 20 facilities it said it referred to
ECEJ for enforcement action. However, after discussing these cases with EPR and ECEJ, both
offices agreed that only 9 of these 20 cases were actually referred to ECEJ. We reviewed files
for these nine cases to determine what actions ECEJ and EPR took to resolve the noncompliance
that was the basis for the referral. These nine cases do not necessarily represent the entire
universe of referred cases. We did not attempt to identify and review the entire universe of
referred cases from EPR to ECEJ.
6 The FY 2008 inspection data we obtained from Region 8 only covered the period October 1, 2007, through January
2008; thus, we did not have inspection data for the full fiscal year. By the end of January 2008, the Region had
already inspected 4.4 percent of the Region's RMP universe that year.
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These nine facilities were audited by EPR in August and September 2006 and referred to ECEJ
in March 2007 for failing to submit a Certificate of Completion after the audit. The Certificate
of Completion is a document that EPR developed and requires facilities to complete in order to
certify that they have resolved the deficiencies identified during an audit and subsequently
described in a Preliminary Determination Letter. The RMP Enforcement Coordinator told us
that ECEJ was unable to take enforcement actions against facilities that failed to submit a
Certificate of Completion because it is not a requirement of 40 CFR Part 68.
In reviewing the RMP case files for these nine facilities, we found that two of the facilities
submitted their Certificates of Completion late, 3 to 4 months past the due date, while the
remaining files did not contain a Certificate. Thus, the compliance status at seven of these nine
facilities remained unresolved. Additionally, the files for these facilities did not contain
documentation of the facilities' referral to ECEJ, or correspondence from ECEJ stating that
ECEJ could not take an enforcement action.7 The RMP Enforcement Coordinator told us that
she returned the files for these facilities to EPR and told EPR staff she was unable to take
enforcement action at the facilities. However, there was no documentation of this decision in
EPR's case files. The compliance status of these seven facilities has been unresolved for over 2
years. These facilities have not been inspected or re-audited by ECEJ or EPR, and have not
received any enforcement action. Cumulatively, these seven unresolved facilities could impact
over 10,000 people in a worst-case release scenario.
Although ECEJ determined that they could not take enforcement action against facilities for
failure to submit Certificates of Completion, the Risk Management Program regulations provide
a mechanism for enforcing noncompliance identified during an audit. The regulations state that
after providing the owner of a facility with the opportunity to respond to a Preliminary
Determination Letter, the implementing agency (Region 8) may prepare a final determination
letter specifying necessary revisions to a facility's RMP. Failure to comply with a final
determination letter is a violation of the Risk Management Program regulations. However, as of
January 2009, EPR had not used the final determination letter mechanism
Region 8 Has Lowest Enforcement Rate of All Regions
A comparison of Region 8's CAA Section 112(r) enforcement actions with other EPA regions
suggests a concern with regional enforcement of the Program. Region 8 has taken fewer CAA
112(r)-related enforcement actions than other regions.8 As of January 2008, Region 8 had taken
only 12 such enforcement actions since FY 2001, which is 2.3 to 44 times fewer enforcement
actions than other regions. The number of actions taken by other EPA regions ranged from 28 to
532. Further, none of the 12 enforcement actions in Region 8 were at high-risk facilities. Region
8 also had the lowest number of enforcement actions in comparison to number of RMP facilities.
7 EPR provided us with an e-mail documenting the referral of these nine facilities to ECEJ in March 2007.
However, neither this e-mail nor other documentation of the referral to ECEJ were included in the case files for
these facilities.
8 Our analysis of enforcement actions includes all CAA Section 112(r)-related enforcement actions, as identified in
the Integrated Compliance Information System database. Section 112(r) includes both the General Duty Clause and
the Risk Management Program. Thus, some of the enforcement actions included in our analysis may be actions
taken for violation of the General Duty Clause.
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Based on the RMP universe as of November 29, 2007, the ratio of enforcement actions per RMP
facility was 0.01 (12 actions/890 facilities) in Region 8. This is less than the ratio for the other
regions, which ranged from 0.02 to 0.23. In our view, the issues described in this report
negatively impacted the Region's enforcement of the Program.
Conclusions
Region 8 has not established effective processes and controls to provide reasonable assurance
that resources are used effectively to accomplish the Risk Management Program's goals. The
two offices tasked with implementing the Risk Management Program have not consistently
followed operating guidance, which has resulted in an inefficient use of resources and
insufficient coverage of RMP facilities. In addition, the Region's two existing guidance
documents for the Program contain contradictory language on which offices should be
conducting RMP inspections. Consequently, most of the Region's high-risk facilities have not
been audited or inspected, while duplicative oversight activities have been performed at many
lower-risk facilities. Further, the compliance status of seven facilities identified as noncompliant
has remained unresolved for over 2 years. Some case files were incomplete and lacked
documentation regarding their referral for enforcement and their compliance status. Region 8
has not clarified its guidance regarding how the two offices will coordinate inspection and
enforcement activities, nor assigned responsibility and accountability for the Program.
Recommendations
We recommend that the Regional Administrator, EPA Region 8:
1. Develop a strategy for administering the Risk Management Program that defines
program goals, performance measures, organizational responsibilities, documentation
requirements, and required coordination between offices.
2. Develop an oversight process to evaluate the Region's success in implementing the
Program strategy.
Region 8 Comments and OIG Evaluation
Region 8 agreed with our findings and recommendations. Additionally, in response to our draft
report, Region 8 has already completed the recommended actions. The Region developed an
Implementation Strategy that addressed Program goals, performance measures, organizational
responsibilities, coordination, and Program resources. In addition, it includes an oversight
process to evaluate EPR's and ECEJ's success in implementing the Strategy. Thus, both
recommendations are being "closed" in our tracking system upon issuance of this final report.
In accordance with EPA Manual 2750, the Region is responsible for recording completion of this
corrective action in the Management Audit Tracking System.
Appendix B contains the full text of Region 8's response to the draft report, including its Risk
Management Program Implementation Strategy.
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Status of Recommendations and
Potential Monetary Benefits
POTENTIAL MONETARY
RECOMMENDATIONS BENEFITS (in SOOOs)
Rec.
No.
1
Page
No.
8
Subject Status1
Develop a strategy for administering the Risk C
Management Program that defines program goals,
performance measures, organizational
responsibilities, documentation requirements, and
required coordination between offices.
Action Official
Regional Administrator,
Region 8
Completion
Date
3/18/2009
Claimed Agreed To
Amount Amount
2 8 Develop an oversight process to evaluate the C Regional Administrator, 3/18/2009
Region's success in implementing the Program Region 8
strategy.
1 0 = recommendation is open with agreed-to corrective actions pending
C = recommendation is closed with all agreed-to actions completed
U = recommendation is undecided with resolution efforts in progress
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Appendix A
Details on Scope and Methodology
For our nationwide evaluation of EPA's implementation of the Risk Management
Program, we interviewed staff and managers from EPA's OEM, OECA, Office of Air
and Radiation, 10 EPA regions, and 4 States with delegation of the Risk Management
Program. We also obtained data from all EPA regions and the 9 States and 5 local
agencies with delegation of the Risk Management Program. The EPA OIG had not
conducted any prior audits or evaluations of the CAA 112(r) Risk Management Program
in Region 8 before the nationwide evaluation. The results of our nationwide evaluation
are included in the report, EPA Can Improve Implementation of the Risk Management
Program for Airborne Chemical Releases (Report No. 09-P-0092, February 10, 2009).
In order to determine whether procedures were in place in Region 8 to provide reasonable
assurance that all facilities subject to the Program regulations had submitted RMPs
(Objective 1), we reviewed the 2006 Toxics Release Inventory to identify facilities in
Colorado that reported having on-site quantities of ammonia, chlorine, or hydrogen
fluoride at levels well above the Risk Management Program thresholds. We then
reviewed the RMP National Database (current as of November 29, 2007) to identify
facilities that had not submitted RMPs or had not re-filed an RMP within its 5-year
anniversary date. We met with Region 8 staff to discuss whether these facilities may be
subject to Program requirements.
To determine whether the inspection process provided reasonable assurance that covered
facilities in Region 8 comply with Risk Management Program requirements (Objective
2), we obtained lists of audits and inspections completed since the inception of the
Program in 1999 from both EPR and ECEJ.9 We used these lists to identify facilities that
had never been audited/inspected. We also compared the lists of audited/inspected
facilities to three lists of high-risk facilities. The three lists we used included:
• OEM's lists of high-risk facilities (Tier 1 and Tier 2 facilities),10
• facilities that could impact 100,000 people or more in a worst-case release
scenario, and
• facilities with the highest 5 percent of hazard indices in their respective
implementing agency.
9 The inspection and audit data we obtained from EPR and ECEJ went through January 2008. However, in
our nationwide evaluation of the Risk Management Program, we used a cut-off date of December 31, 2007,
for all audit and inspection analyses. Thus, the inspection and audit figures for Region 8 in this evaluation
report may differ slightly from those in our nationwide Risk Management Program report.
10 OEM's criteria for identifying high-risk facilities included the population impacted in a worst-case
release scenario, the amount of chemical held in a process above the regulatory threshold quantity, and the
worst-case release scenario endpoint distance. OEM divided its list into two tiers, with Tier 1 facilities
representing a higher inspection priority than the Tier 2 facilities.
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The hazard index of each facility was calculated using a formula11 developed by the
Wharton School of the University of Pennsylvania. We used these three lists as OIG's
criteria for identifying RMP facilities that are high-risk facilities. We interviewed EPR
and ECEJ staff and managers and reviewed guidance, procedures, budget reports, and
other materials regarding the implementation of the Program by these offices. In order to
determine the number of 112(r)-related enforcement actions for Region 8 and the other
regions, we searched the Integrated Compliance Information System database for all
enforcement actions from FY 2001 to January 2008 that listed CAA 112(r) as the primary
law and section.
We conducted our evaluation of EPA's implementation of the Risk Management Program
in accordance with generally accepted government auditing standards. Those standards
require that we obtain sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions. During our evaluation we identified concerns with Region 8's
management of the Risk Management Program. We believe the evidence obtained
provides a reasonable basis for our findings and conclusions based on our objectives.
11 The Wharton School's hazard index is defined as "the sum over all chemicals of Iog2 (maximum quantity
of inventory on-site/threshold), or, alternatively, as the number of chemicals times Iog2 of the geometric
mean of the maximum-to-threshold quantity ratio."
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Appendix B
Region 8 Response to Draft Report
March 19, 2009
MEMORANDUM
SUBJECT: EPA Region 8 Response to OIG Draft Evaluation Report, "EPA Region 8
Needs to Better Manage the Risk Management Program for Airborne
Chemical Releases"
FROM: Carol Rushin
Acting Regional Administrator
TO: Wade T. Najjum
Assistant Inspector General
Office of Program Evaluation
Office of Inspector General
Thank you for the opportunity to review and comment on the draft evaluation report
titled, "EPA Region 8 Needs to Better Manage the Risk Management Program for Airborne
Chemical Releases," Project Number OPE-FY08-0001. The report focuses on improving
the implementation of the Clean Air Act Risk Management Program in Region 8, and
includes recommendations.
As a whole, Region 8 agrees with the findings and recommendations as outlined in
the report. Since October 2008, both offices responsible for implementing the Risk
Management Program have worked closely towards resolution of issues outlined in the draft
report. We are committed to effectively managing our resources, planning and coordinating
compliance activities and clarifying the roles and responsibilities of both offices. We will
follow-up with the appropriate action at the seven facilities identified in the draft report as
being unresolved. In addition, we will increase inspection and enforcement activities at
high-risk facilities as defined by OECA and OEM. Below is our specific response to each of
the recommendations.
Recommendation number 1: Develop a strategy for implementing the Risk Management
Program in Region 8 that defines program goals, performance measures, and organizational
responsibilities.
- Region 8 concurs with this recommendation. As mentioned above, the two offices
within Region 8 have worked closely the past several months to clarify the
organizational responsibilities and to properly align resources that will increase
inspection and enforcement activities at high-risk facilities. As a result of this
effort, we have finalized a strategy (Attachment) that defines program goals,
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performance measures, and organizational responsibilities. In addition, the
strategy includes outreach and inspection strategies and standard operating
procedures for sharing information between offices and associated recordkeeping.
The inspection strategy is based on the specific risk-related factors encompassed in
OSWER and OECA's jointly revised National Program Manager's guidance.
These factors will be considered in deciding which facilities will be included in the
annual inspection strategy.
Recommendation number 2: Develop an oversight process to evaluate the Region's success
in implementing the Program strategy.
- The strategy also includes an oversight process to ensure successful
implementation of the program strategy. End-of-year reviews will be conducted
by management in the individual offices to assess progress over the past year and
modify approaches for program implementation as needed. EPR will prepare an
end-of-year report on all outreach and training activities for the CAA 112(r)
program and report to management on the activities. ECEJ oversight of the
program will be based on an end-of-year review of all inspection files. The review
will be conducted by ECEJ management and the inspection team and will include
an accounting of the high-risk facilities inspected and evaluation of the findings.
Based on the findings, the enforcement team will formulate an approach for the
upcoming year to ensure effective inspection targeting.
- Each office will maintain records for the information forwarded from one office to
the next. An annual summary of the records will be reviewed between the offices
and shared with management in both offices.
Region 8 feels confident that the above described measures concurrent with the
realignment of resources and clear delineation of duties across offices will resolve the issues
identified in the February 20, 2009 Draft OIG Evaluation Report.
Again, we appreciate the opportunity to review and comment on this Report. If you
have any questions or comments, the person most knowledgeable about this report is Cindy
Reynolds, Director of the Air and Toxics Technical Enforcement Program. She can be
reached at (303) 312-6206.
Attachment
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EPA REGION 8
CAA 112(R)/RISK MANAGEMENT PROGRAM
IMPLEMENTATION STRATEGY
March 18, 2009
I. INTRODUCTION
In November 2007, the Office of the Inspector General (OIG) began an evaluation of the
EPA's national CAA 112(r) program. The objectives of the OIG review were to
determine whether:
• Procedures are in place to provide reasonable assurance that all facilities subject
to the program have submitted risk management plans; and
• The inspection process provides reasonable assurance that covered facilities
comply with the risk management program requirements.
During the evaluation, the OIG identified concerns with Region 8's program and issued a
separate report in February 2009 to address these concerns. This report ("EPA Region 8
Needs to Better Manage the Risk Management Program for Airborne Chemical
Releases") identified areas of concern and recommended a strategy be developed to
address program goals, performance measures, and organizational responsibilities. The
report also recommended an oversight process be developed to evaluate Region 8's
implementation of the strategy. This strategy addresses the OIG recommendations and
replaces the Implementation Protocol for Coordination of Efforts between the Technical
Enforcement Program and the Preparedness and Prevention Team for implementation of
the CAA 112(r) program.
II. PROGRAM GOALS
EPR and ECEJ have jointly developed the following goals for the CAA 112(r) program:
• Implement the CAA 112(r) program consistent with national program guidance,
meet performance measures, and reduce accident risk at chemical facilities in
Region 8;
• Provide a framework that delineates responsibilities across EPR and ECEJ for
jointly implementing the program;
• Provide a mechanism for forwarding incoming information to the appropriate
office to ensure seamless implementation; and
• Provide a mechanism for recordkeeping to allow for individual program oversight
of the program's implementation.
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III. PERFORMANCE MEASURES
Performance measures for the CAA 112(r) program are defined in EPA's Annual
Commit System (ACS). These two measures are:
• CH2 - Number of risk management plan audits and inspections completed; and
• CAA11 - Conduct inspections at 5% of the total number of facilities in the region
required to submit RMPs. Of these inspections, 10% must be conducted at high-
risk facilities. These inspections at high-risk facilities must also include an
evaluation of compliance with applicable EPCRA and CERLA requirements.
IV. ORGANIZATIONAL RESPONSIBILTIES
The division of responsibility between ECEJ and EPR ensures that there is not overlap in
the individual responsibilities of the two offices. EPR will interface with industry while
delivering outreach in group forums such as workshops and conferences. ECEJ will
interface directly with regulated industry during inspections and investigations. EPR
developed a strategy for conducting outreach (Attachment 1) and ECEJ developed a
strategy for inspection activities (Attachment 2).
The following provides a summary of the activities for the individual offices:
EPR
• Provide outreach for States, locals, industry on EPA software programs (e.g., Tier
II submit, RMP Submit);
• Provide outreach at SERC, LEPC and TERC meetings;
• Provide outreach to industry as needed on requirements of EPCRA, CERCLA 103
and RMP;
• Conduct cleanup and maintenance of OEM's RMP database;
• Work with States to encourage RMP program assumption;
• Identify industrial sectors for outreach; and
• Identify potential non-filers through database reviews and local groups (fire
departments, SERCs and LEPCs) and forward to ECEJ.
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EPR will develop an outreach plan that incorporates OEM priorities and guidance and
meets the Region's overall implementation of the program as outlined in Attachment 1.
ECEJ
• Conduct inspections and investigations to evaluate compliance with EPCRA,
CERCLA 103, RMP and GDC;
• Develop enforcement actions as appropriate;
• Respond to State and local requests regarding specific facility compliance;
• Evaluate the NRC spill log to determine possible noncompliance with CERCLA
103, EPCRA and RMP;
• Identify RMP non-reporters during EPCRA inspections and CERCLA 103
investigations; and
• Conduct enforcement initiatives in industry sectors when noncompliant trends are
found.
OECA and OEM jointly created inspection priorities in the FY2010 NPM guidance.
ECEJ will create an inspection strategy which encompasses these priorities as outlined in
Attachment 2.
V. PROGRAM COORDINATION
A Standard Operating Procedure has been developed (Attachment 3) that addresses how
information will be forwarded between ECEJ and EPR regarding the CAA 112(r) and
EPCRA programs.
POINTS OF CONTACTS: The contact in ECEJ is the Enforcement Coordinator for
RMP/EPCRA/CERCLA 103 program. The contact in EPR is the RMP Coordinator.
COORDINATION MEETINGS: On a quarterly basis, EPR and ECEJ will meet to
discuss any pertinent coordination issues. These meetings will provide the opportunity
for offices to share information of mutual interest, review any information forwarded
between the offices, and share outreach and inspection results.
VI. RESOURCES
Prior to the 1995 reorganization, the emergency preparedness program and related
enforcement activities fell into the Emergency Response Branch. Funding and resources
are provided by the OEM in OSWER. When Region 8 reorganized, compliance
monitoring and enforcement responsibility for these programs was placed in ECEJ.
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After detailed review and discussions of the division of responsibilities, Region 8 has re-
aligned resources as follows:
PROGRAM
& FUNDING
EPM
SUPERFUND
PREPAREDNESS
SEEs
EPR
FTE
0.5
2.0
EXTRAMURAL
$160K
3.0
ECEJ
FTE
2.0
EXTRAMURAL
$150K
2.0
(Note: this redistribution does not currently alter the FTE ceiling of either office.)
VII. OVERSIGHT
EPR will prepare an end-of-year report on all outreach and training activities for the CAA
112(r) program and report to management on the activities.
ECEJ oversight of the program will be based on an end-of-year review of all inspection
files. The review will be conducted by ECEJ management and the inspection team and
will include an accounting of the high-risk facilities inspected and evaluation of the
findings. Based on the findings, the team will formulate an approach for the upcoming
year to ensure effective inspection targeting.
Each office will maintain records for the information forwarded from one office to the
next. The mechanism for this recordkeeping is outlined in Attachment 3. An annual
summary of the records will be reviewed between the offices and shared with
management in both offices.
ATTACHMENTS:
1 - OUTREACH STRATEGY
2 - INSPECTION STRATEGY
3 - SOP FOR FORWARDING INFORMATION BETWEEN OFFICES AND
ASSOCIATED RECORDKEEPING
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Attachment 1
OUTREACH STRATEGY
EPR will perform outreach activities to the regulated community on the requirements of
the Risk Management Program (RMP) to enhance the overall safety at facilities and the
general public.
EPR will use staff, SEE personnel, and contractors to provide general outreach on the
RMP to emergency planners and responders by attending and providing program
information at SERC, TERC and LEPC meetings. When specific industry groups are
identified or request RMP outreach activities, EPR will take appropriate actions to insure
the needs of these groups are met.
EPR will develop outreach materials to address specific needs related to the RMP
program and present these materials to appropriate emergency planning groups or
industry sectors or facilities. An example of such a need is the current shift from paper or
floppy disks to electronic submittal using RMP e* Submit software for re-submittal of
RMP data. As other program changes, court decisions, or regulatory interpretations
dictate, EPR will develop and present other outreach materials to assist the public in
understanding the requirements of the program.
If there is an industry segment or category that is found to present safety elevated risks of
the release of a covered chemical, outreach activities may be developed and made
available in an effort to abate the risks and improve public safety.
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Attachment 2
INSPECTION STRATEGY FOR THE RMP PROGRAM
ECEJ's annual inspection strategy will based on a table of high risk inspection sites
considering the following factors identified in OECA's and OSWER's FY2010 NPM
guidance:
Facilities whose reported RMP worst-case scenario population exceeds 100,000
people;
Facilities holding any RMP-regulated substance on site in an amount more than 10,000
times the RMP threshold quantity for the substance;
Facilities whose reported RMP worst-case scenario endpoint distance equals or
exceeds 25 miles;
Any RMP facility with a hazard index greater than or equal to 25;
Facilities that have had one or more significant accidental releases within the previous
five years; and
Other facilities where information possessed by the Regional office indicates that the
facility may be high-risk.
• On an as needed basis, modifications to the strategy will be made if chemical
events occur at RMP reporting facilities and an immediate investigation/
inspection is warranted.
• ECEJ will conduct a minimum of 10% of the total RMP inspections at high-risk
facilities consistent with the OEM and OECA's national program guidance for the
RMP program.
• Additional inspections will be based on geographic opportunity while conducting
RMP inspections throughout the Region's six states. These inspections will
include non-reporting facilities that may meet the RMP reporting criteria.
• ECEJ is also responsible for the NPM measure for TRI non-reporter and data
quality inspections. Concurrent with these inspections, compliance with both
CAA 112r's RMP and GDC will be evaluated.
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Attachment 3
STANDARD OPERATING PROCEDURES FOR
FORWARDING INFORMATION BETWEEN ECEJ AND EPR
AND ASSOCIATED RECORDKEEPING
PURPOSE
This SOP defines the process by which information will be forwarded to the appropriate
office. This will ensure that information coming into Region 8 will be promptly
redirected as necessary.
PROCESS FOR TRANSMITTING INFORMATION
There are occasions in which information will come into one office that must be
redirected based on the delineation of tasks.
If a call comes into voice mail, the voice mail message will be forwarded to the
appropriate office. Telephone conversations will be summarized and relayed via email to
the appropriate office. Hardcopy information will be hand delivered, routed by
interoffice mail, or scanned and transmitted via email. When hardcopy information is sent
by interoffice mail, an email will follow to confirm transmittal of the information.
In response to receipt of information transmitted by EPR, ECEJ will complete a tracking
form that will describe the nature of the information and the subsequent review by ECEJ.
The completed tracking form will be attached to the corresponding email with the records
being maintained in a three ring notebook.
EPR will keep a log of both incoming and outgoing information.
During quarterly meetings, the teams can discuss specific topics of interest that arise from
the exchange of information.
POINTS OF CONTACTS
ECEJ, Enforcement Coordinator for RMP/EPCRA/CERCLA 103 program
EPR, RMP Coordinator
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Appendix C
Distribution
Office of the Administrator
Acting Regional Administrator, Region 8
Acting Assistant Administrator for Solid Waste and Emergency Response
Acting Assistant Administrator for Enforcement and Compliance Assurance
Acting Assistant Administrator for Air and Radiation
Assistant Regional Administrator, Office of Ecosystems Protection and Remediation,
Region 8
Assistant Regional Administrator, Office of Enforcement, Compliance and
Environmental Justice, Region 8
Director, Office of Emergency Management, Office of Solid Waste and
Emergency Response
Acting General Counsel
Acting Associate Administrator for Congressional and Intergovernmental Relations
Acting Associate Administrator for Public Affairs
Audit Follow-up Coordinator, Region 8
Acting Inspector General
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