Office of Inspector General
Audit Report
RCRA ENFORCEMENT
REGION 2'S ENFORCEMENT OF THE
RESOURCE CONSERVATION AND
RECOVERY ACT (RCRA)
1999 -1-00224
DATE JULY 21,1999
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Inspector General Division Eastern Audit Division
Conducting the Audit New York City, New York
Region covered Region 2
Program Office Involved Division of Enforcement and Compliance
Assistance
Division of Environmental Planning
and Protection
Criminal Investigations Division
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MEMORANDUM
SUBJECT: Region 2's Enforcement of the Resource Conservation
and Recovery Act (RCRA)
Audit Report No. 1999 -1 -00224
FROM: Paul D. McKechnie
Divisional Inspector General
Eastern Audit Division
TO: Jeanne M. Fox
Regional Administrator
Region 2
Attached is our audit report, Region 2's Enforcement of the Resource
Conservation and Recovery Act (RCRA). This report contains findings and
recommendations that are important to both EPA and the State of New Jersey.
This audit report contains findings that describe problems the Office of Inspector
General (OIG) has identified and corrective actions the OIG recommends. This audit
report represents the opinion of the OIG and the findings contained in this audit report
do not necessarily represent the final position by the Environmental Protection Agency
(EPA). Final determinations on matters in this audit report will be made by EPA
managers in accordance with established EPA audit resolution procedures.
Accordingly, the findings described in this audit report are not binding upon EPA in any
enforcement proceeding brought by EPA or the Department of Justice.
ACTION REQUIRED
In accordance with EPA Order 2750, you as the action official are required to
provide this office a written response to the audit report within 90 days. Your response
should address all recommendations, and include milestone dates for corrective
actions planned, but not completed.
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We have no objection to the release of this report to the public.
Should you or your staff have any questions about this report, please contact me
at (617) 918-1470 or Herb Maletz, Audit Manager at (212) 637-3058.
Attachment
cc: Scott Opis - Audit Coordinator
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
EXECUTIVE SUMMARY
INTRODUCTION
The Resource Conservation and Recovery Act
(RCRA) required EPA to develop a framework of
hazardous waste regulations. Congress intended
that States assume responsibility for implementing
RCRA regulations with oversight from EPA.
However, EPA still maintained its authority to enforce
RCRA regulations particularly when States were
unwilling or unable to enforce. Ideally, States and
EPA should work in partnership. For the RCRA
program to be effective in reducing risks to human
health and the environment, it is essential that RCRA
violators be identified and quickly returned to
compliance.
OBJECTIVES
The objectives of our audit were to determine:
(•* how the lack of RCRA reauthorization
impacted Regional enforcement in New
Jersey.
(•* whether Region 2 issued appropriate
enforcement actions and assured timely
compliance with enforcement actions in
accordance with the 1996 EPA
Enforcement Response Policy (ERP).
(•* whether Region 2 assured that the
Resource Conservation and Recovery
Information System (RCRIS) data was
timely and accurately entered.
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
RESULTS IN BRIEF Region 2 generally complied with EPA's Enforcement
Response Policy (ERP) by issuing appropriate
enforcement actions in New York. However,
improvements were needed in assuring that
enforcement actions were issued timely and that
violators returned to compliance in a timely manner.
The Region's limited enforcement authority in New
Jersey in some cases deterred the Region from
taking appropriate civil and criminal enforcement in
that State. Additionally, maintaining a reliable RCRIS
data base was an ongoing problem, previously
reported in a 1993 OIG audit report.
During our site visit to the New Jersey Department of
Environmental Protection (NJDEP), we found that
NJDEP generally took timely and appropriate
enforcement action as well as assured that violators
returned to compliance in accordance with their
enforcement documents. NJDEP's RCRIS data was
not accurate. However, the Region and NJDEP have
addressed this issue.
The following paragraphs summarize our findings:
Delayed NJ RCRA Reauthorization Impacted
Region 2's Enforcement Program
New Jersey's new RCRA base program was still not
authorized more than two and one half years after
New Jersey submitted its initial application. New
Jersey's RCRA base program had not been timely
reauthorized because Region 2 did not aggressively
encourage New Jersey to submit a complete
application package. Region 2 allowed NJDEP to
delay the application process by not timely elevating
action to a higher management level.
As a result, Federal regulations divested EPA of its
enforcement authority for certain RCRA base
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
program activities. Enforcement was unnecessarily
delayed or not pursued against such violators who
illegally shipped hazardous wastes to landfills;
improperly stored chemicals near a residential
neighborhood; and buried flammable paint and waste
solvents on private property. Such violations
potentially harmed not only the environment but
nearby residents. Specifically, five criminal cases
were not pursued by Federal authorities under
RCRA. Two cases were referred to the State for
prosecution; one may be pursued under a different
Federal regulation by Federal authorities; and two
other cases may have to be abandoned. At least two
civil cases were also affected. Since Region 2 could
not take formal enforcement action, one of the cases
was eventually referred to the State for action.
However, much time was lost during this process.
One facility remained in non-compliance for more
than 341 days after inspection, while the second
facility took 577 days before it finally attained
compliance.
In response to our draft report, Region 2 wrote that
the Regional Administrator had recently, tentatively
approved New Jersey's application for RCRA
authorization. The approved program was published
for public comment in the Federal Register on May
11,1999. No public comments were received.
Improvements Needed in Region 2's
Implementation of the RCRA Enforcement
Program
Region 2 needs to improve its timeliness in issuing
enforcement actions and documenting following-up
on violators' return to compliance. Our review of 31
judgmentally selected files disclosed that Region 2
did not determine appropriate enforcement action
within 90 days or document the justification for the
in
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
delay as required by the ERP for 7 of 15 sampled
New York cases and 2 of 16 sampled New Jersey
cases. Also, the Region took longer than the 180
days provided by the ERP to issue formal
enforcement actions. Region 2 did not effectively
follow up on a facility's return to compliance in 4 of 15
sampled New York cases and 8 of 16 sampled New
Jersey cases. As a result, facilities were not returned
to compliance as expeditiously as possible. The use
of RCRA §3007 Information Request Letters often
delayed the Region's ability to determine the
appropriate enforcement action to take. Also, the
Region did not use a tracking system to assure that
actions orfollowup were conducted in accordance
with ERP time frames. As a result RCRA program
resources were not being used efficiently to carry out
program goals. Also, facilities may not have been
treated consistently and violators may have received
an unfair economic advantage.
Region 2 Did Not Assure that RCRIS Data Was
Timely and Accurately Entered
Region 2 continued to fall short of providing reliable
Regional and State RCRIS data. Our review of 31
(judgmentally selected) Regional inspections
disclosed untimely or inaccurate RCRIS data for 12 of
16 New Jersey and 13 of 15 New York files reviewed.
Additionally, Region 2 did not assure that NJDEP
recorded accurate data. Enforcement activity for all
11 State cases reviewed was inaccurately or
incompletely entered into RCRIS. These conditions
occurred because the Region did not establish
adequate procedures or guidelines to assure the
timely and accurate entering and reviewing of RCRIS
data. Other contributing factors included Regional
staff not fully using RCRIS data as a tracking tool,
and Inspectors believing the system was not "user
friendly." As a result, RCRIS could not provide an
IV
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
accurate picture of Region 2 enforcement activity.
Without reliable data, Headquarters could not
measure EPA's progress in achieving the
Government Performance Results Act goals related
to RCRA activities. Also, the public's right to know
about EPA and State RCRA enforcement activities
was stymied.
During our audit, both Region 2 and the NJDEP
started to address the aforementioned RCRIS
reporting issues. The Region developed a
customized RCRIS report to provide managers with a
tracking tool and provide a means for NJDEP to
review and correct RCRIS data. The NJDEP
immediately corrected errors identified once it
received printouts from Region 2. Region 2
continues to monitor RCRIS progress at both the
State and Regional level.
RECOMMENDATIONS To prevent similar reauthorization problems in the
future, we recommend that the Regional
Administrator instruct Regional staff to develop a
process to avoid a lengthy period where EPA's civil
and/or criminal enforcement authority would be
adversely affected. We recommend establishing time
frames for the process, elevating persistent problems
to the Regional Administrator, withdrawing State
authorization or Federal grant funds as appropriate,
and developing expeditious referral procedures for
criminal and civil cases during the period EPA does
not retain its enforcement authority.
We also recommend that the Regional Administrator
instruct the Regional Department of Enforcement and
Compliance Assurance (DECA) staff to follow the
ERP time frames in determining appropriate
enforcement actions and document justification when
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
such time frames are not met; develop procedures or
guidelines regarding the use of information request
letters; document followup of facilities in non-
compliance; and continue the development and
implementation of quality control procedures to
ensure the reliability and integrity of RCRIS for both
Regional and State data.
REGIONAL COMMENTS The Assistant Regional Administrator for Policy and
& OIG EVALUATION Management responded to our draft report on May 6,
1999. The Region did not agree with all our
conclusions or recommendations. At the end of each
chapter, we added a summarization of the Region's
response and our evaluation of their response. See
Appendix 1 to read the entire Regional response. An
exit conference was held on June 21, 1999.
VI
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
TABLE OF CONTENTS
EXECUTIVE SUMMARY i
ABBREVIATIONS ix
CHAPTERS
CHAPTER 1 - INTRODUCTION
Purpose 1
Background 1
Scope and Methodology 4
Prior Audit Coverage 7
CHAPTER 2 - DELAYED NEW JERSEY RCRA REAUTHORIZATION IMPACTED
REGION 2'S ENFORCEMENT PROGRAM 9
CHAPTER 3 - IMPROVEMENTS NEEDED IN REGION 2'S IMPLEMENTATION
OF THE RCRA ENFORCEMENT PROGRAM 29
CHAPTER 4 - REGION 2 DID NOT ASSURE THAT RCRIS DATA WAS TIMELY
AND ACCURATELY ENTERED 51
CHAPTER 5 - OTHER MATTERS 63
APPENDIX 1 - REGIONAL RESPONSE 65
APPENDIX 2 - DISTRIBUTION 80
vn
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Region 2's Enforcement of the
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ABBREVIATIONS
CID
DECA (Region 2)
DEPP (Region 2)
EPA
ERP
FBI
FMFIA
GPRA
HSWA
MIS
MOA
NEIC
NJDEP
NOV
OECA
OGC
OIG
ORC
PPA
RA
RCRA
Criminal investigation Division
Department of Enforcement and Compliance Assurance
Department of Environmental Planning and Protection
Environmental Protection Agency
Enforcement Response Policy
Federal Bureau of Investigations
Federal Managers' Financial Integrity Act
Government Performance Results Act
Hazardous and Solid Waste Act
Management Information Section
Memorandum of Agreement
National Enforcement Investigations Center
New Jersey Department of Environmental Protection
Notice of Violation
Office of Enforcement and Compliance Assurance
Office of General Counsel
Office of Inspector General
Office of Regional Counsel
Performance Partnership Agreement
Regional Administrator
Resource Conservation and Recovery Act
IX
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
RCRIS
SNC
SV
TSDF
Resource Conservation and Recovery Information System
Significant Non-Complier
Secondary Violation
Treatment Storage and Disposal Facility
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA
CHAPTER 1
INTRODUCTION
PURPOSE
EPA developed the Resource Conservation and
Recovery Act (RCRA) regulations for the safe
management of hazardous waste. EPA also
delegated to State agencies the primary responsibility
for implementing RCRA to ensure that the public
health and environment are protected. However,
EPA does not relinquish its enforcement authority
when it delegates a program to a State agency. EPA
can take enforcement if a delegated State agency is
unwilling or unable to take enforcement.
Our audit objectives were to determine:
1. how the lack of RCRA reauthorization
impacted Regional enforcement in New
Jersey.
2. whether Region 2 issued appropriate
enforcement actions and assured timely
compliance with enforcement actions in
accordance with the 1996 EPA ERP.
3. whether Region 2 assured RCRIS data
was timely and accurately entered.
BACKGROUND
Serious environmental and health problems caused
by hazardous waste mismanagement resulted in
legislation and regulations to clean up waste released
into the environment and to prevent further releases.
Congress enacted RCRA in 1976 which established,
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
under Subtitle C, a framework for managing
hazardous waste from generation to final disposal.
Hazardous waste is solid waste which, because of its
quantity, concentration, physical, chemical, or
infectious characteristics, may pose a hazard to
human health or the environment.
Congress intended that States assume responsibility
for implementing RCRA hazardous waste regulations
with oversight from the Federal Government. In order
to become authorized to implement the Subtitle C
program, a State must develop a hazardous waste
program which is equivalent to and consistent with
the Federal program and have it approved by EPA.
Although a State with an authorized program has
primary responsibility for administering Subtitle C,
EPA retains oversight responsibility and parallel
enforcement authority.
In addition, EPA awards annual grants to States,
under RCRA Section 3011, for the development and
implementation of hazardous waste programs. States
and EPA regions negotiate the specific work that
must be accomplished with the grant funds. State
authorization may be withdrawn by EPA if the EPA
Administrator determines that the State program no
longer complies with the regulatory requirements, and
the State fails to correct the problem.
Enforcement Actions While State agencies conduct most facility
inspections, Region 2 also conducts facility
inspections using its own staff. When facilities are
cited for violations during inspections, the citing
Agency must take appropriate enforcement actions.
Appropriate enforcement responses are discussed in
EPA's hazardous waste enforcement response policy
(ERP). An enforcement response may be either a
formal or informal enforcement action.
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
Formal enforcement may take the form of an
administrative order, civil lawsuit, or criminal lawsuit.
A monetary penalty may be imposed as part of the
enforcement action. Region 2's "complaints" were
considered formal enforcement. A facility classified
as a significant non-complier (SNC) merits a formal
enforcement action.
The 1996 EPA ERP defined a SNC:
The designation of Significant Non-Complier
(SNC) is intended to identify non-compliant
facilities for which formal enforcement is
appropriate. Specifically, SNCs are those
facilities which have caused actual exposure to
hazardous waste or hazardous waste
constituents; are chronic or recalcitrant
violators; or deviate substantially from the
terms of a permit, order, agreement or from
RCRA statutory or regulatory requirements.
An informal enforcement response involves issuing a
Notice of Violation (NOV) which cites the violations
and provides a schedule for returning the facility to
compliance. This is the minimally appropriate
enforcement action for a Secondary Violator (SV). A
facility which does not meet the SNC definition is
classified as an SV. An informal enforcement action
does not include economic sanctions. However, a
facility which fails to return to compliance following an
informal enforcement response should be reclassified
as a SNC and receive a formal enforcement
response.
The ERP defines a chronic or recalcitrant facility as
one having repeated violations (even if minor in
themselves) or one that fails to quickly correct
violations in the past. This designation may classify
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
the facility as a SNC. A facility should be evaluated
on a multi-media basis to determine whether it is a
chronic violator or recalcitrant. However, a facility
may also be found to be a chronic or recalcitrant
violator based solely on prior RCRA violations.
A core principle of EPA's enforcement and
compliance assurance program is that violators
should not gain an economic advantage. EPA's ERP
states that an appropriate enforcement response "will
achieve a timely return to compliance and serve as a
deterrent to future noncompliance by eliminating any
economic advantage received by the violator." An
additional reason for recovering economic benefit is
to eliminate the economic advantage violators gain
over their competitors who have invested time and
money in achieving compliance.
SCOPE AND We performed this audit in accordance with
M ETHODOLOGY Government Auditing Standards (1994 Revision)
issued by the Comptroller General of the United
States as they apply to performance audits. Our
review included tests of the program records and
other auditing procedures we considered necessary.
We conducted audit work at EPA's Region 2 in New
York City and the New Jersey Department of
Environmental Protection (NJDEP).
We reviewed facility files containing inspection
reports, enforcement actions and related
correspondence to determine whether Region 2 and
NJDEP took appropriate enforcement actions against
facilities with violations. We did not evaluate the
quality of inspections.
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
To address our audit objectives, we conducted the
following audit work:
1. Interviewed EPA Region 2 and NJDEP
staff involved in RCRA activities.
2. Reviewed the inspection reports and the
level of enforcement action taken by
Region 2 and NJDEP in response to the
cited violations.
3. Compared cited violations to the 1996
EPA ERP and NJDEP's enforcement
policy to evaluate whether the level of
enforcement taken complied with these
policies.
4. Compared the information in the
Regional and NJDEP facility files to the
RCRIS database for accuracy and
completeness.
5. Evaluated the timeliness and adequacy
of Regional and NJDEP followup
response to cited violations.
6. Interviewed various Region 2 RCRA
staff, an OIG Special Agent, an FBI
Agent, and the U.S. Attorney in New
Jersey regarding the reauthorization of
the New Jersey RCRA program and its
effects. New Jersey officials declined to
discuss this issue with us.
To select the facilities for review, we analyzed RCRIS
printouts dated July 29, 1998, for New Jersey, and
November 25, 1998, for New York.
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
We reviewed Region 2 and New Jersey inspections
and enforcement actions for Fiscal years (FYs) 96,
97, and 98 ending June 30,1998. For New York we
reviewed Region 2's inspections and enforcement
actions for FYs 96, 97, and 98.
We determined from RCRIS printouts that Region 2
performed the following number of inspections:
Inspections Performed in I
FY
96
97
98
New York
317
238
446
New Jersey i
66 j
122 j
149
The NJDEP Director of Compliance stated they
perform approximately 2500 inspections a year,
which included compliance inspections and
"welcome wagons." Welcome wagons were
considered compliance assistance inspections.
We judgmentally selected 31 facilities with violations
for review after separating formal and informal
enforcement action. We used selection criteria such
as: number of violations, number of inspections, type
of enforcement action taken, violation classification
(i.e. SNC, SV), and time lapsed since scheduled
completion with no actual completion.
We reviewed management controls and procedures
specifically related to our objectives. Our review of
the RCRIS data management system was limited to
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
the verification of the accuracy of RCRIS as it
pertained to inspections and enforcement and not the
system as a whole.
As part of our evaluation, we reviewed Region 2's
FYs 96, 97 and 98 Federal Managers' Financial
Integrity Act (FMFIA) Assurance Letters. The FYs 96
and 97 letters disclosed no material weaknesses in
the RCRA enforcement program. The FY 98 letter
identified RCRIS as a material weakness or
vulnerability. Specifically, the letter identified major
RCRIS data base inventory upgrades needed for
large quantity generators and treatment, storage, and
disposal facilities. None of the issues mentioned in
our finding on RCRIS (Chapter 4) were included in
these FMFIA letters.
Our fieldwork was performed from July 13, 1998 to
January 29, 1999.
PRIOR AUDIT On January 21, 1999, the OIG issued, Audit Report,
COVERAGE RCRA Significant Non-Complier Identification and
Enforcement by the Rhode Island Department of
Environmental Management (Report No. E1GSD8-
01-0006-9100078).
On March 31, 1998, OIG issued, Report of Audit,
Significant Non-Complier Enforcement by EPA and
Washington State (Report No.EIGSF7-11-0019-
8100093).
On December 15, 1993, the OIG issued, Report of
Audit of Region 2's Administration of State Resource
Conservation and Recovery Act (RCRA) Enforcement
Activities (Report No. E1DSD2-02-0053-4100128).
Findings were reported in the areas of: 1) States
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
need to take timely and complete enforcement; 2)
penalties; and 3) RCRIS reliability. RCRIS reliability
is a continuing problem (see Chapter 4 for more
details).
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
CHAPTER 2
DELAYED NEW JERSEY RCRA REAUTHORIZATION IMPACTED
REGION 2'S ENFORCEMENT PROGRAM
New Jersey's new RCRA base program has not been
authorized more than two and one half years after the
State submitted its incomplete application and over
four years after it informed Region 2 of its intention to
repeal its existing State program. New Jersey's
RCRA base program had not been timely
reauthorized because Region 2 did not aggressively
encourage New Jersey to submit a completed
application package.
As a result, EPA no longer had enforcement authority
for base program violations in the State of New
Jersey. Enforcement was unnecessarily delayed or
not pursued against violators who illegally shipped
hazardous wastes to landfills; improperly stored
chemicals near a residential neighborhood; and
buried flammable paint and wastes solvents on
private property. Such violations potentially harm not
only the environment but also nearby residents.
Specifically, at least five criminal cases were
adversely impacted by the lack of reauthorization.
EPA had to discontinue pursuing two cases and refer
them to the State. The Assistant U.S. Attorney is
trying to prosecute one other case under a different
authority. Two more cases may be dropped
altogether since they cannot be prosecuted under
RCRA. While prosecution was being considered,
containment activities were conducted at the criminal
sites. Additionally, Region 2 was unable to take
formal enforcement action against two civil cases.
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
One facility remains in non-compliance more than
341 days after the inspection while the second facility
took 577 days to reach compliance after the initial
inspection.
BACKGROUND In 1985, New Jersey was authorized for the RCRA
base program. This program covered the essential
core of RCRA, including the definitions of solid and
hazardous waste; procedures for obtaining permits;
and the standards governing generators and
transporters of hazardous waste and treatment,
storage, and disposal facilities (TSDFs). In 1988 and
1994 the authorized State program was expanded by
a small number of additional RCRA and new
Hazardous and Solid Waste Act (HSWA) regulations.
Because New Jersey's RCRA regulations were more
stringent than the Federal program, the Governor
directed NJDEP to develop regulations more in line
with the Federal program. As a result, in 1994 New
Jersey advised the Region of its intent to repeal its
existing hazardous waste regulations and enact a
new hazardous waste program by incorporating the
Federal RCRA regulations by reference. Originally,
this program was scheduled to sunset in October
1995.
In early 1995, senior Region 2 officials stated they
were in contact with New Jersey officials about the
problems that would have been encountered had the
program sunset in 1995. Particularly, State
hazardous waste laws would have lapsed. This
would have had devastating consequences because
neither EPA, New Jersey, nor its citizens would have
been able to enforce RCRA regulations. As a result,
the Governor, by Executive Order, extended the
RCRA State regulations for one year. According to
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
Region 2, insuring that State hazardous waste
regulations were on the books was judged to be the
most critical issue, even if (as the Region recognized)
there would be a period of time before EPA could
enforce some of them.
On October 21, 1996, the State repealed the
authorized State program and adopted the "New
State Program." Also, in October 1996, the State
applied to EPA for reauthorization of the RCRA base
program and authorization of HSWA corrective action
programs. As of June 1999, EPA had not
reauthorized New Jersey's RCRA base program.
In order for a State to be reauthorized, a completed
application package must be submitted and approved
by EPA. The application package must include a
Final Memorandum of Agreement (MOA) acceptable
to EPA, an Attorney General Statement, and a
Program Description (including name and program
changes).
According to 40 CFR §271.20 (d):
Within 90 days from the date of receipt of a
complete program submission for final
authorization, the Administrator shall make a
tentative determination as to whether or not he
expects to grant authorization to the State
program . . . The Administrator shall give
notice of this tentative determination in the
FEDERAL REGISTER . . .
The CFR further provides that the public will be
afforded 30 days after the notice to comment on the
State's submission and tentative determination. The
EPA Administrator shall make a final determination
within 90 days of the public notice.
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
UNWARRANTED NJDEP showed a lack of commitment and
DELAYS cooperation in obtaining speedy approval of its new
RCRA program by failing to respond timely to Region
2's effort to resolve concerns regarding NJDEP's
application package. Region 2 allowed NJDEP to
delay the application process by not timely elevating
action to a higher management level.
Regional RCRA officials stated that NJDEP submitted
an incomplete application to Region 2 in October
1996. According to 40 CFR §271.5 (b), "Within 30
days of receipt of a State program submission, EPA
will notify the State whether its submission is
complete." The RCRA Program Chief said NJDEP
was verbally notified soon after the application was
submitted that it was not acceptable. However,
Region 2 did not write of its concerns with NJDEP's
proposed closure activities and corrective actions
until March 1997, well beyond the 30 day time limit.
(In the future, the Region should consider
documenting their initial determinations.) Another
letter was sent to NJDEP in May 1997 which stated,
"Closure is an important element of the RCRA
program and NJDEP needs to resolve these issues
prior to re-authorization of the base program." The
Region indicated that it did not perceive closure as a
significant issue until January 1997.
Since Region 2 had not received NJDEP's written
response to either of the above letters, the Regional
Administrator (RA) wrote to the NJDEP Commissioner
on September 8, 1997 outlining the issues which
impeded reauthorization of NJDEP's RCRA base
program. Neither the NJDEP Commissioner nor his
staff responded in writing to the RA's letter until June
24, 1998 when NJDEP's Assistant Commissioner,
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
Site Remediation Program wrote to Region 2's
Director, Division of Environmental Planning and
Protection (DEPP).
After the RA's September 1997 letter, NJDEP's
Director, Division of Responsible Party Site
Remediation responded on October 22, 1997 to
Region 2's Director, DEPP. However, the issues
raised in the letter did not address the RA's letter but
rather the May 1997 EPA letter. The letter
acknowledged the need to develop a strategy for
issues raised in the May letter. However, no action
had been taken at this point, more than five months
after EPA sent its May letter. Other correspondence
between the two agencies followed, none of which
addressed the RA's letter.
These delays negatively affected EPA because the
Region was without its enforcement authority during
this period. It was not until January 1998 that the
Deputy RA was advised that the Region lacked
enforcement authority while New Jersey's base
program remained unauthorized. After being advised
of the situation, the Deputy RA became frustrated
with New Jersey and resolved that he would not let
this reauthorization issue continue much longer.
In our opinion, the State's actions showed that
obtaining EPA's approval of its new RCRA base
program was a low priority. NJDEP, unlike the
Region, was not being impacted since it was still able
to execute its full enforcement powers. However, the
U.S. Attorney and Federal investigators were
extremely frustrated in their attempts to bring serious
RCRA violators to justice.
Unfortunately, Region 2's responses did not
persuade NJDEP to complete an acceptable
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
application package in a timely manner. Negotiations
stagnated at the Division Director level. We believe
that a more vigorous response from the RA's Office
was needed. Also, the Region never proposed to use
such sanctions as withdrawing authorization or grant
funds. While EPA's philosophy was to work with
States on a partnership basis, the State was not
responsive to EPA's needs especially when such a
vital activity as EPA's enforcement authority was at
stake.
Issues Causing For more than two years, EPA and NJDEP disagreed
Delays on three main issues in developing the MOA. These
issues were NJDEP's need to:
(1) establish a RCRA Coordinator position
to input RCRIS data and track closures;
(2) prepare a closure strategy; and
(3) include public participation under
corrective action plans.
On September 11,1998, Region 2 and NJDEP held a
teleconference to finally iron out their differences.
Region 2's RCRA Program Chief said there was
"conceptual agreement on all issues." Based upon
these agreements, NJDEP submitted its "final"
application to Region 2 in January 1999. Details
regarding the agreement on each of the three issues
follow:
1. NJDEP agreed to hire a RCRA
Coordinator and this agreement will be
included in the MOA. According to
Region 2's RCRA Program Chief,
previously, NJDEP did not realize the
need for a coordinator.
14
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
2. Rather than include the closure strategy
in the MOA, EPA agreed to allow
NJDEP to submit the strategy under
separate cover on a date of the State's
choosing. The State chose to submit
this strategy in March 1999, two months
after submitting its "final" application.
3. NJDEP decided to forgo the corrective
action issue under HSWA. NJDEP had
never been authorized for this program
and decided to postpone authorization
until a later date. Therefore, the MOA
did not need to address the issue of
public participation.
These major issues which the Region claimed
delayed reauthorization were eventually either
dropped, addressed under separate cover, or agreed
upon. In our opinion, these issues were not so
insurmountable that the Region and State could not
have reached a quicker resolution. Again, we point to
the fact that during this period EPA basically was
stripped of one of its fundamental powers, RCRA
enforcement in New Jersey. Such a loss was not
justified considering the potential harm to the public
and environment as illustrated by the following cases.
CRIMINAL IMPACTS For more than two and a half years the Region's
enforcement program was debilitated. There were at
least five criminal cases which could not be
prosecuted under RCRA. Two cases had to be
dropped by EPA and referred to the State. One other
case may be prosecuted under a different law if the
Assistant U.S. Attorney is successful. The remaining
15
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
two cases may be dropped altogether since there are
no other alternatives to prosecution under RCRA.
Details of these five cases follow:
Case 1 A major oil refinery (located in close proximity to a
residential area) disposed of RCRA wastes since
World War II. As a result, there was contamination
from reactive chemical wastes in a lagoon. Federal
and State law required the facility, which was closing
down, to clean up the wastes. The facility declared
the waste non-hazardous and contracted a clean-up
company to dispose of the wastes. After some of the
waste had been hauled to an out of State landfill, the
clean-up contractor realized that this was RCRA
hazardous waste. The contractor contacted EPA's
Criminal Investigations Division (CID), which then
obtained a search warrant and gathered evidence.
The Federal Bureau of Investigations (FBI) was also
involved in this case. However, lacking Federal
enforcement authority, neither CID nor the FBI could
pursue this case. CID referred the case to the State
which continued to pursue this matter.
Case 2 A chemical repackaging company (located in the
middle of a lower income neighborhood) committed
RCRA storage violations and contaminated a water
table. This company bought chemicals in bulk (i.e.
tanker full) and repackaged them into smaller
containers (i.e. gallon containers). However, some of
these chemicals could not be used for resale. The
unused portion of the chemicals remained on site for
years which is a RCRA storage violation. The drums
or storage containers holding the chemicals
eventually started to leak into the water table. Since
there was a joint interest in this case, EPA brought in
the State. However, the local District Attorney must
prosecute this case because it cannot be Federally
enforced.
16
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
Case 3 A small paint manufacturer committed RCRA disposal
violations involving paint waste and solvents used to
clean equipment. The facility owner, who had been
on site since 1965, stored the flammable solvents in
drums and buried them in the back of his property
(approximately 6-7 acres). The Assistant U.S.
Attorney was forced to pursue prosecution of this
case under a different authority (i.e. CERCLA). If this
case is not successfully prosecuted under CERCLA,
it will not be referred to the State. According to CID,
the State had reviewed this case a couple of times
over the past few years but did nothing about it.
Cases 4 & 5 Two small companies which went out of business
abandoned hazardous wastes on their sites. These
RCRA wastes were discovered approximately a year
after the companies closed. Clean-up was turned
over from the State to EPA because the clean-up
costs were too high for the State. Although RCRA
was the regulatory authority covering these cases,
the Assistant U.S. Attorney had to examine different
regulatory authorities (i.e. CERCLA or the Clean
Water Act) for prosecution. Therefore, EPA used its
resources to clean up a site for which they were
unable to criminally prosecute.
These five cases represent the Region's current
enforcement difficulties. However, until NJDEP's new
program is authorized, additional violations may be
discovered related to this time frame (from October
1996 thru EPA program approval date). EPA will face
the same enforcement dilemma of how to pursue
these cases.
CIVIL CASES EPA's limited enforcement authority in New Jersey
also affected how the Region addressed civil as well
17
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
as criminal cases. Prior to New Jersey seeking
reauthorization of its new base RCRA program,
Region 2 had the ability to take formal enforcement
action against RCRA violators in New Jersey. Until
the new base program is approved, Region 2 must
now refer formal enforcement action to NJDEP and
has done so. (Formal enforcement action is taken
against facilities which caused actual exposure or a
substantial likelihood of exposure to hazardous waste
or are chronic or recalcitrant violators.) The following
two cases describe the limit of Region 2's actions
against these violators.
Case 1 This facility was issued a Notice of Violation (NOV)
regarding the status of old process equipment and
poor waste handling. Although Regional personnel
considered this facility a Significant Non-Complier
(SNC), they had to delay drafting the compliance
order because the Office of Regional Counsel (ORC)
was investigating regulations that could be cited in
the compliance order regarding waste
mismanagement. However, ORC decided not to
issue the complaint.
In the meantime, more than 266 days passed since
the inspection was performed, the facility continued to
be in non-compliance, and formal enforcement was
not issued by the Region. Subsequently, this case
was referred to New Jersey for enforcement action.
As of December 22, 1998, New Jersey had not acted
upon the referral and the facility had remained in non-
compliance, more than 341 days after the inspection.
However, in March 1999, NJDEP issued an
administrative order based on EPA's referral and
NJDEP's subsequent inspection. This was more than
13 months after the inspection.
18
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
Case 2 This facility's February 21, 1997, inspection disclosed
a failure to: (a) maintain a contingency plan, (b) close
storage containers, and (c) retain on-site for at least
five years a copy of all documentation concerning
hazardous waste sent to off-site TSDFs. The
Region's April 29, 1997, NOVwas issued timely. The
facility requested and was granted an extension but
failed to respond. On October 7, 1997, the Region
then issued a §3007 information request letter. The
facility's November 17, 1997, response was deemed
inadequate. On February 2, 1998 the Region issued
a combined §3007 letter and NOV. The facility's
November 4, 1998, response to the combined §3007
letter and NOV was finally accepted on November 27,
1998 bringing the facility into compliance, 577 days
after the inspection.
Explaining why it took the Region so long to resolve
this case, the DECA Section Chief said this facility
"fell from his radar screen." Because Region 2
lacked enforcement authority, the case could have
been referred to NJDEP. However, the State would
not have taken enforcement unless they conducted
their own inspection. Therefore, such a referral
would not have necessarily saved time. The Section
Chief added that, regardless of the status of the
Region's enforcement authority, he would not have
escalated enforcement action to the formal level. He
believed the violations were not serious enough to
warrant formal enforcement and the facility should be
given a second chance. The Region 2 Inspector said
"We regret that it took almost a year and a half longer
than usual to resolve this matter."
Although the violations cited may not have been
highly significant, we believe that the case should
have been referred to the State in a timely manner for
appropriate action.
19
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
Additional Cases
The DECA Section Chief stated that besides the two
aforementioned civil cases, at least one other case (a
dry cleaner) had to be referred to NJDEP for followup
actions. The potential for identifying other similar
cases remains until NJDEP's new base program is
authorized.
CONCLUSION
Not only has EPA's authority to protect the
environment been compromised, but serious RCRA
violators continued to harm the environment with
impunity. EPA has ultimate responsibility for assuring
that Federal regulations are implemented. However,
without full enforcement authority, EPA cannot carry
out this important mandate. One significant benefit to
EPA enforcement authority is that it serves as an
objective counterbalance to the States' enforcement
authority. As we have presented through the case
studies, environmental pollution continued unabated
until a suitable enforcement authority could be
determined. Compliance was not achieved in the
shortest period of time and some companies which
violated RCRA regulations were not held
accountable. Such companies might gain an unfair
economic advantage over other law-abiding
competitors.
The difficulty in attaining reauthorization eroded the
partnership relationship between EPA and the State
of New Jersey. Each Agency was no longer on an
equal footing. The Federal government must hope
that the State would take appropriate enforcement
action once a case was referred. If not, the Federal
government had limited recourse.
20
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
UPDATE
While Region 2 could refer violators to the State for
enforcement, this established an undesirable
precedent and decreased program efficiency. Other
States might view NJDEP's strategy of delay as a
successful means to circumvent Federal
environmental law particularly since the Region did
not effectively resist. Referring cases to the State
was not an efficient stopgap since the State would not
issue an enforcement action without conducting its
own inspection. Valuable time would be lost, and
significant violators would continue to pollute
unabated.
NJDEP finally submitted a final application package
to EPA on January 14, 1999, almost two and one
half years after initially applying for
reauthorization, and almost five years after first
announcing its intention to establish a new base
program. A public notice and comment period will
still be required after EPA's acceptance of this
application. According to Region 2, this should take
approximately 45 days. If there are no comments, the
program can finally be authorized. However, if there
are public comments, additional time will be required
to address and evaluate these comments. It should
be noted that on April 19, 1999 the Acting RA signed
the proposed approval document. On May 11, 1999,
Region 2 finally published the proposed rule in the
Federal Register. Comments must be received by
June 10, 1999. Regional officials advised that no
public comments were received, therefore a final
Federal Register notice must be published.
RECOMMENDATIONS:
In the future, should a state notify EPA of its intention
to repeal its RCRA program, we recommend that the
Regional Administrator:
21
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
1. Develop a process which would endeavor to
avoid a lengthy period where EPA's civil
and/or criminal enforcement authority would be
adversely affected. The process should
consider:
(a) Establishing reasonable time frames
for the State's submission of a
complete, formal authorization
application;
(b) Developing procedures to expedite
enforcement referrals to the State until
reauthorization is formally approved.
The procedures should outline
necessary documentation the State
requires to avoid reinspecting a facility
before it initiates formal enforcement
action;
(c) Elevating the reauthorization
discussions to a higher management
level including the Regional
Administrator for more aggressive
actions if delays are encountered at the
program level;
(d) Withdrawing partial or complete
State authorization or
suspending/withdrawing Federal grant
funds if the State does not submit a
complete application and timely respond
to specific EPA concerns.
2. Complete the remaining steps for approving
NJDEP's new base program in accordance
with the time frames established by 40 CFR
§271.
22
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
3. In conjunction with NJDEP, implement an
expeditious referral procedure so that any
current or additional cases identified can be
timely enforced by the State until Region 2
regains its enforcement authority.
REGIONAL RESPONSE Region 2 described the draft report as "inaccurate in
its recitation of the history of RCRA reauthorization in
New Jersey in that it does not acknowledge many
early Regional efforts to bring problems to the State's
attention, nor does it place in a larger context, many
of the activities occurring during the 1996-1999
period." Additionally, NJDEP did not submit a
complete draft application in October 1996.
Region 2 believed the OIG overstated the
environmental consequences. "The assumption that
companies were able to break the law 'with impunity'
is wrong." Also the Region could have issued a
unilateral order even if a particular prosecutor
concluded that a Federal criminal prosecution was
problematic. In addition, expeditious referrals of
criminal investigations were made to the State (Case
1 was referred within 3 weeks and County
prosecutors were involved with Case 2 within 3 days
of learning of the matter). Moreover, New Jersey's
enforcement actions were generally timely and
appropriate. As a result the concerns raised in the
report "seem overdrawn."
Regarding civil case number 1, the Region said, "The
State did not need to conduct its own inspection. It
should be noted that this information was provided to
the OIG but the OIG incorrectly states, on page 18,
that NJDEP had not yet acted on this referral."
23
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
Finally, the Region stated the draft report overlooked
the larger context of the issues surrounding RCRA
reauthorization in New Jersey which made prompt
resolution difficult.
Region 2 agreed with a number of the report's
recommendations and believed it had implemented
many of them. The Region believed that earlier
written communication of the enforceability concerns
to the Regional Administrator and the Criminal
Investigations Division might, in hindsight, have been
advisable. However, it considered, but did not adopt
the other recommendations and believed their
adoption would not have reduced the difficulty
experienced during the reauthorization process.
Specifically:
Recommendation #1: The Region was aware in
advance of NJDEP's sunsetting program and a
schedule had been discussed for submission of a
program approval application. However, there were
unforeseen complexities which impacted the
schedule. Additionally, a requirement was
incorporated in the new MOA to notify EPA in
advance of proposed changes.
Recommendation #2: The Region agreed with the
recommendation and stressed that the 90 day
deadline commences when the Region receives a
complete program submission, in this case January
14, 1999. The Region expects public notice of its
proposed application approval in May 1999.
Recommendation #3: The Region believes it is
referring cases in a timely manner and will continue
to do so.
24
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
OIG COMMENTS The draft report highlighted the significant events
pertaining to the reauthorization issues. During the
1996-1999 time period the OIG agrees that additional
activities took place (i.e. meetings) to discuss this
matter. However, the meetings apparently did not
expedite the reauthorization outcome. Additionally,
we were not made aware that New Jersey's program
was scheduled to sunset in October 1995. However,
this shows that the Region knew about the impending
reauthorization problems at an earlier date but took
even longer to resolve the issues.
The response stated that NJDEP did not submit a
draft application in October 1996. However, Region 2
RCRA officials stated that NJDEP "applied for
reauthorization in October 1996." Regardless of
whether a complete draft application was submitted in
October 1996, the fact remains that most issues
which impeded the reauthorization process were
known when the State repealed its program. Yet, it
took more than two years to resolve those issues and
for NJDEP to submit the January 14, 1999 formal
application.
The OIG did not overstate the environmental
consequences. We believe that hazardous waste
drums which were improperly stored, inappropriately
handled, and leaking posed a threat to the
environment. Such conditions represented violations
of the RCRA law. In case 1, the violator did not
identify its waste as hazardous. Subsequent
handlers of this improperly identified waste could
have inadvertently caused an accident. Federal law
enforcement officials were pursuing these cases
because the companies violated environmental laws
meant to protect the public and the environment. All
criminal cases were discussed with the assigned
25
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
investigators and the Assistant U.S. Attorney. Since
investigators were willing to pursue these cases, the
OIG believes there were significant environmental
consequences.
The Region argued that companies were punished or
penalized during the reauthorization delay through
NJDEP's enforcement actions. However, there will
be no referral for State enforcement action for three
of the five criminal cases. The Assistant U.S.
Attorney researched different regulatory authorities
which might be used for prosecution of these Federal
cases. Unfortunately, if these cases are not
prosecuted under these different authorities, they will
not be pursued. Therefore, we believe that certain
companies harmed the environment with impunity.
The State had previously looked into one of the cases
but took no enforcement action.
Although some of these criminal cases might have
been timely referred to the State, this should not have
been necessary since the Federal government should
have been able to prosecute these cases. When
Federal investigators spend time and effort in
gathering the evidence, the next course of action
naturally is Federal prosecution. In one case, even
the FBI discontinued its investigation. Speedy
referrals to the State does not change the fact that
EPA was stripped of one of its fundamental powers -
enforcement.
For civil case number 1, an e-mail from the DECA
Chief stated, "NJDEP in early March also issued an
administrative order to [company name deleted]
based on our referral to them and their own follow-up
inspection [emphasis added]. As you know,
[company name deleted] was one of the two SNC
cases that we couldn't take action against because of
26
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
the lack of authorization. They imposed a penalty of
$5,000." This penalty was issued more than 13
months after EPA's January 15, 1998 inspection.
The following comments address the Regional
responses to specific recommendations.
Recommendation # 1: The OIG strongly believes that
a formalized process is necessary and should be
implemented should a similar situation occur in the
future. Consideration should be given to the four
components of this recommendation as well as
reasonable time frames for completion. The
response indicated that the Region "discussed" a
schedule for NJDEP's submission of a program
approval application, but the schedule "unraveled".
This action as well as the lengthy delays clearly
shows the need for a more formal process to ensure
more timely resolution of the issues. We agree that
initiating program withdrawal might have been
disruptive and burdensome. However, from October
1996 to the present, Region 2's inability to enforce
certain RCRA regulations actually caused disruptive
and burdensome problems which might have affected
public health and the environment.
Recommendation # 2: We were advised that the
Regional Administrator tentatively approved NJDEP's
final application on April 19,1999 and the notice was
published in the Federal Register on May 11, 1999.
The Region should complete the remaining steps (i.e.
evaluating the public comments and final approval)
as soon as possible.
Recommendation # 3: Two of the sixteen New Jersey
civil cases sampled were not referred to the State in a
timely manner. Based on our limited review, we don't
know how many other cases fall into this area. The
27
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
OIG strongly believes that formal procedures should
be implemented to timely refer enforcement cases to
the State. When a case could no longer be actively
pursued because of the reauthorization issue, the
Region should initiate a quick referral to the State.
In conclusion, we believe the Region's response
overlooked the larger issue of EPA's loss of its
enforcement powers. The Region's concerns tended
to focus on meetings and correspondence over the
two and one half years which were not mentioned in
the report. During this period EPA had to rely on the
State to take enforcement action on Federal cases.
EPA's mission statement states that EPA's purpose is
to ensure that Federal laws protecting human health
and the environment are enforced fairly and
effectively. For over two and one half years EPA was
not able to fulfill this mission for certain Region 2
RCRA violators.
Region 2 was also very concerned about the
reauthorization delays and the "current impairment of
RCRA enforcement with the State". A January 22,
1998 ORC memo outlined the reauthorization history
and obstacles. Specifically, it stated:
1. The New State Program remains unauthorized.
This has created severe problems for the
enforcement of RCRA by EPA, within the
State.
2. The State's repeal of the State Program and
the failure to authorize the new State Program
has severely impaired the Region's ability to
enforce RCRA within the State, both civilly and
criminally.
28
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
3. NJDEP, unlike the Region, is not being hurt
due to the lack of authorization for the New
State Program. The States' bureaucracy has
no interest in authorization, or at least is in no
hurry to obtain it.
These statements by the Regional attorney clearly
show the numerous reauthorization problems and
concerns that the Region could not enforce specific
RCRA regulations. Therefore, we believe that our
serious concerns about this matter were not alarmist,
inaccurate, or overdrawn.
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
CHAPTER 3
IMPROVEMENTS NEEDED IN REGION 2'S IMPLEMENTATION
OF THE RCRA ENFORCEMENT PROGRAM
Although Region 2's implementation of the RCRA
enforcement policy generally complied with Agency
guidelines, improvements were needed to assure that
all enforcement procedures were in accordance with
the March 15, 1996 Enforcement Response Policy
(ERP). Region 2 generally issued appropriate
enforcement actions for violators in the State of New
York. However, Region 2 needed to improve its
timeliness to comply with the ERP time frames of
making enforcement decisions within 90 days and to
document its justification for the delay in issuing
formal enforcement actions. Additionally, Region 2
needed to document and conduct more timely
followup on facilities' return to compliance.
The lack of guidelines and documented time frames
for issuing RCRA §3007 Information Request Letters
and NEIC's untimely inspection reports caused the
Region to miss the ERP's established time frames.
Also, the Region did not utilize RCRIS as a tracking
system to ensure that facilities returned to
compliance on a timely basis.
As a result, facilities were not always returned to
compliance as quickly as possible and RCRA
program resources were not used efficiently to carry
out program goals. Also, facilities may not have been
treated consistently and violators may have received
an unfair economic advantage.
30
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
UNTIMELY ENFORCEMENT
ACTION
Enforcement Determinations
Took More than 90 Days
Our review of 31 judgmentally selected files disclosed
that Region 2 did not determine the appropriate
enforcement action for 7 of 15 sampled New York
facilities and 2 of 16 sampled New Jersey facilities
within 90 days of inspection as provided by the ERP.
Additionally, formal enforcement was not always
taken within 180 days in accordance with the ERP.
Untimely enforcement resulted from coordinating
multi-media enforcement efforts, the "routine" use of
§3007 Information Request Letters, and late
inspection reporting by NEIC.
The following table identifies the nine cases where
Region 2 did not decide appropriate enforcement
action within 90 days. Appropriate enforcement
actions took between 106 and 476 days.
No
1
2
3
4
5
6
7
8
9
Facility
NY6*
NY7*
NY9
NY10*
NY13
NY14*
NY15
NJ6*
NJ7
Inspection
Date
07/17/98
05/05/97
10/30/97
04/24/95
02/14/97
03/04/97
05/29/96
10/19/95
11/17/97
ERP Time
Frame To
Determine
Action
90
90
90
90
90
90
90
90
90
Days
Flapsed
173
296
106
387
376
476
370
120
191
* RCRA § 3007 Information Request letters
Type of Action
Issued
No action issued as
of 1/6/99
Complaint
NOV
Complaint
NOV
Complaint
NOV
NOV
NOV
31
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
Formal Enforcement Not
Issued in 180 Days
The following table identifies three cases where
Region 2 did not take formal enforcement within 180
days as provided by the ERP.
LENGTH OF TIME TO ISSUE
FORMAL ENFORCEMENT
Facility
NY7
NY10
NY14
Inspection
Date
05/05/97
04/24/95
03/04/97
Days Elapsed
296
387
476
The RCRA Compliance Branch Chief stated that for
NY7 the delay was the result of coordinating a multi-
media enforcement effort. Time was lost waiting for
other program information. Also, the ERP allows 20
per cent of a year's cases to exceed the standard
response times because of unique factors.
We found another case delayed by a multi-media
effort. Region 2 initially contemplated issuing formal
enforcement action against case NY13. The
Inspector believed multi-media issues existed based
upon the results of his February 14, 1997 inspection.
He referred the case to the Multi-media Committee
but the multi-media inspection was not conducted
until December 1997. The response from a §3007
Information Request Letter showed that a formal
action was not appropriate. An NOV was finally
issued for RCRA violations on February 25, 1998,
376 days after the initial RCRA inspection. The
Inspector explained that the delay was the result of
32
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
trying to coordinate with the multi-media inspection.
He said that while delays were expected, the process
should not have been delayed by more than a month
or two.
The ERP states that:
In cases where response times will be
exceeded due to case specific circumstances,
the implementing agency must prepare a brief
justification for the delay and develop an
alternative schedule for case resolution.
Our file reviews did not disclose any documentation
justifying why ERP time frames were not met or an
alternative schedule for case resolution.
utilization of RCRA §3007 We found four New York cases and one New Jersey
Information Request Letters case where the Region's utilization of RCRA §3007
Information Request Letters caused considerable
delay in issuing an enforcement action. Although the
purpose of the letter was to obtain additional
documentation not available during the inspection,
Region 2 used the letter to get the company to
implicate itself and to assure they "get it right."
The following table illustrates that by the time Region
2 issued §3007 letters and allowed a 30 day
response, almost 90 days had elapsed. This
procedure as implemented made it difficult for the
Region to meet the ERP's 90 day time frame to
determine appropriate enforcement action.
33
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
Facility
NY6
NY7
NY10
NY14
NJ6
Inspection
Date
07/17/98
05/09/98
04/24/95
04/04/97
10/19/95
§3007
Letter
Issued
09/10/98
07/01/98
07/08/95
04/21/97
07/07/97
10/16/97
12/12/95
Days
Elapsed
55
53
75
17
125
225
54
RCRA officials advised that supervisors normally
give about two weeks to prepare §3007 letters after
the inspection report is finalized. However, as the
above schedule shows, it has taken between 17 and
75 days to issue the §3007 letters.
RCRA §3007 states that:
Any person who generates, stores, treats,
transports, disposes of, or otherwise handles
hazardous waste, shall upon request of any
officer or representative of EPA, furnish
information relating to such waste and permit.
RCRA staff stated that Information Request Letters
were issued because they wanted the facilities to
respond in writing. It was easier to take enforcement
if a facility owner admitted to certain practices. Also,
facilities might be requested to analyze waste to
determine whether or not it was hazardous. The
DECA Section Chief stated that Regional attorneys
believed Information Request Letters were more
enforceable than an NOV, and they could pursue a
34
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
facility for failure to respond to a §3007 letter but not
an NOV. He also stated the Region attempts to give
a facility two chances to come into compliance before
a formal complaint is filed, and the issuance of the
§3007 letter is one of those chances.
While the Region can take enforcement action
against a facility for failing to respond to a §3007
letter but not an NOV, such enforcement would only
pertain to responding to the §3007 letter and not to
the potential facility violations. However, the Region
would probably continue to pursue enforcement for
facility violations rather than for not responding to a
§3007 letter. Also, routinely giving potential violators
a second chance was not required by regulations and
did not assure that violators were returned to
compliance as soon as possible. Information
Request Letters may be necessary in some cases.
However, in our opinion, issuance of such letters in
some cases was a duplication of effort and caused
unnecessary delay in issuing enforcement
documents. We believe Region 2 needs to re-
evaluate their use to assure that the letters are used
efficiently.
The following three examples illustrate how the use of
Information Request Letters delayed the issuance of
enforcement actions.
In case NY14, three different Information Request
Letters were issued before the formal complaint was
finally issued (476 days after the inspection). The
ERP required the Region to issue formal enforcement
in 180 days. This facility was cited for 12 counts of
violations which included offering hazardous waste to
unauthorized entities on two occasions, and shipping
hazardous waste without a manifest. The Inspector
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
stated that issuing three letters was unusual, however
ORC wanted the third letter sent.
In two cases (NY10 and NY6), the Region's §3007
letters requested information previously observed
during the inspection. For example, the Inspector
noted there was no internal communication or alarm
system. However, the §3007 letter asked the facility,
"Does the hazardous waste storage area have a
telephone or communication or alarm system? If so
please describe it and when it was installed. It was
not available during the time of inspection." We
believe sending §3007 letters caused delays in
issuing enforcement actions. For NY10, a Complaint
was not issued until 387 days after the inspection and
for NY6, an enforcement action was not issued as of
January 16, 1999, 173 days after inspection.
Proceeding in this manner is a duplication of effort
which increases the time before any enforcement
action might occur. This additional time can give a
violator an unfair advantage over complying facilities
and delay return to compliance.
The Region needed to develop guidelines or
procedures that included when it was appropriate to
use a §3007 letter as well as to establish time frames
for sending the letters. These guidelines should
allow the Region to meet the ERP time frames for
timely enforcement. The §3007 letter did not require
a facility to correct known violations, but only to
respond to questions. While waiting for the facility to
respond to the letter, violations such as 290
unlabeled drums, missing emergency equipment, and
failure to train employees on proper waste handling
procedures and emergency procedures, may go
uncorrected.
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
We believe the Region should consider methods
other than the use of the §3007 letter for obtaining
information. During the inspection exit conference,
Inspectors could leave written requests for additional
information, or obtain statements from owners
verifying operating procedures. If such information is
not provided voluntarily within a specific time frame,
then issuing a §3007 letter may be appropriate. This
approach may not work for all instances (e.g.,
sampling), but we believe there could be times when
such an approach could expedite the enforcement
process.
Late NEIC Reports Delayed In two cases (NJ7 and NY15), the issuance of NOVs
Enforcement was delayed because the Region did not receive
timely inspection reports from NEIC. NEIC issued
reports to the Region six and ten months after the
inspections. This caused the NOVs to be issued 191
and 370 days after the inspections. As a result,
facilities were in non-compliance longer than
necessary.
NEIC is the national support center for EPA's
enforcement and compliance assurance program.
NEIC supports the environmental enforcement
community in field activities and engineering
evaluations, forensic laboratory activities, information
management, computer forensic, technical analysis
and training, and in the courtroom. Region 2's
Memorandum of Agreement (MOA) required NEIC to
conduct a specific number of Region 2 inspections.
Because Region 2 received the NEIC reports so late,
a decision on the appropriate enforcement action
could not be made in 90 days. Since the Region's
MOA had not established time frames for inspection
reports, NEIC was under no obligation to issue
reports expeditiously to the Region.
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
INADEQUATE FOLLOW UP Region 2 did not effectively follow up on cited
TO CITED VIOLATIONS violations to ensure facilities returned to compliance
in four of 15 New York and eight of 16 New Jersey
cases. Informal actions were issued for three of the
five New York and all eight New Jersey cases; formal
actions were issued for the remaining two New York
cases. The number of days for these facilities to
return to compliance (if they did) far exceeded the 30
days outlined in the issued enforcement action. In
addition, we found very little information in the files to
show that the Region was actively following up on a
facility's return to compliance. As a result, violations
(i.e., hazardous waste operating manual not meeting
requirements of a contingency plan, failing to mark
containers "Hazardous Waste," and retaining copies
of manifest on file) remained uncorrected between
155 and 577 days.
The ERP provided that:
The objectives of an informal enforcement
response are to compel the violator to cease
its non-compliant activities and ensure that full
physical compliance is achieved in the shortest
time frame.
At the time a violator is formally notified of the
violation determination it is given a compliance
date which establishes a deadline or the
violator to correct all known violations. A
correction period during which the violator
should correct all known problems should not
exceed 90 days.
Failure to achieve full physical compliance by
the compliance date or a failure to notify the
implementing agency of the inability to correct
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
Case NJ1
violations should result in an escalation to
formal enforcement.
Even though the ERP allowed facilities a maximum of
90 days to come into compliance, Region 2
determined that 30 days was adequate and gave
facilities only 30 days to come into compliance..
However, in 8 of 12 sampled cases facilities took
longer days allowed in ERP to come into compliance.
The following two examples illustrate the Region's
inadequate followup of facilities' response to
enforcement actions.
The Region 2 Inspector took more than a year before
assuring that the facility complied with the original
NOV. Region 2's April 29, 1997 NOV requested a
response within 30 days of receipt of the NOV. On
May 30, 1997, the facility requested and was granted
an extension to June 16,1997. However, the facility
never responded.
In August and
September
1997, the
Inspector
contacted the
facility about
the late
response to the
NOV. Again,
the facility did
not respond.
The Region
then sent a
§3007 letter
(October 7,
1997) restating
information
Date
2/21/97
4/29/97
7/2/97
10/7/97
11/17/97
2/2/98
11/4/98
11/27/98
Action
Inspection performed
NOV issued
Response due (include 30
day extension)
3007 letter issued
Response received
3007 Letter* NOV
Date of facility's response
Facility's response deemed
acceptable
39
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
already requested. The inspector considered the
November 17, 1997, response to the §3007 letter
deficient, but did not advise the facility of the
deficiency until February 2, 1998 when another
§3007 letter combined with an NOV was issued. The
facility did not respond to this document, and the
Region did not contact the facility until August 1998.
The §3007 letter and NOV stated that failure to
respond in full was a violation of RCRA and might
result in Federal enforcement action pursuant to
Section 3008 RCRA, 42 U.S.C. § 6928. Section 3008
pertains to Federal enforcement and includes
information on compliance orders, public hearings
and criminal penalties.
The Inspector stated that he was away at school from
May through August 1998, and this case was not
assigned to another Inspector during his absence.
When he returned in August 1998, he contacted the
facility and faxed them a copy of the Region's
February 2, 1998, letter to them. Between August
and October 1998, there was no Regional contact
with this facility. The facility response dated
November 4, 1998, was deemed acceptable by the
Region on November 27, 1998, 577 days after the
inspection was conducted. The Inspector further
stated that he had a heavy workload and this case
was not a priority.
The DECA Section Chief stated he uses his personal
computer tracking system to track a facility's
compliance, and this case "fell off his radar screen."
The Region's followup actions to ensure compliance
were excessively late. This facility's history of
untimely response required more effective followup
than the Region provided.
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
Case NY9 In this case, the Region 2 Inspector took nearly a
year before assuring that the facility complied with the
NOV. This facility was inspected on October 30,
1997, and an NOVwas issued on February 13, 1998.
The facility was cited for failure to make a
determination whether its solid waste was a
hazardous waste. The facility did not respond to the
NOV, and there was no documentation in the file to
indicate the Region attempted to contact the facility.
A December 4, 1998, re-inspection of the facility
(more than one year after the original inspection)
disclosed that it was in compliance. On December 8,
1998, 298 days after the enforcement action was
issued, the facility finally responded to the NOV.
The Inspector stated because of a heavy workload
the enforcement action was issued late. In addition,
because this was a small facility, they made a
conscious decision to wait a year before reinspecting
the facility. There was no information in the file to
show the Region 2 decision not to follow up on this
facility. Failure to follow up on known violations
because a facility is small sends the wrong message
to the regulated community and gives the perception
that EPA does not deal with all facilities or all
violators equally. Without adequate followup,
facilities will not seriously acknowledge EPA's
enforcement.
These cases illustrate the need for an effective
tracking system to assure that facilities are complying
with enforcement orders and returning to compliance.
The Region also needs to document in the files follow
up efforts. RCRIS can provide the tracking system
needed. See Chapter 4 for more details regarding
the Region's use of RCRIS.
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
CONCLUSION
Region 2 generally took the appropriate level of
enforcement. However, the Region had not provided
adequate assurance that violators received the
appropriate level of enforcement within the
recommended time frames, and that violators
returned to compliance in a timely manner. These
weaknesses must be addressed to assure that
violations do not continue for an unreasonable
amount of time and that facilities are treated fairly. In
some cases, the Region's need for additional
information or coordination with other media may
justify exceeding the ERP time frames. However, in
such cases the Region needs to provide adequate
justification for an appropriate alternative time frame
and comply with it. The Region should also make
greater use of RCRIS as a tracking system so that the
time frames are followed.
RECOMMENDATIONS
We recommend that the Regional Administrator
instruct the DECA Chief to:
1. Consistently follow the ERP time frames
in determining appropriate enforcement
actions or provide adequate justification
for not meeting the time frames.
2. Establish and implement time frames for
coordinating multi-media enforcement
cases.
3. Establish written time frames for issuing
§3007 Information Request Letters.
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
4. Consider methods other than the use of
§3007 Information Request Letters for
obtaining information to expedite the
enforcement process.
5. Establish time frames in the MOA with
NEIC for submission of inspection
reports.
6. Utilize the RCRIS data base to track
facilities' compliance with enforcement
actions.
7. Document the Region's followup of
facilities in non-compliance.
REGIONAL RESPONSE Region 2 provided general as well as specific
comments on individual cases and recommendations.
Region 2 stated that three of the nine untimely cases
resulted from factors (i.e., untimely NEIC reports and
multi-media complications) outside the RCRA
Enforcement Program. The ERP provided for a
ceiling of untimely cases at 20 percent for each year.
Region 2 agreed that for such cases they did not
document justifications for exceeding ERP standard
response times nor establish alternative time-frames
for taking action. However, it plans to do so in the
future. The Region also agreed that in the future it
would issue NOVs with the § 3007 letters for
inspection violations. Therefore, violations would be
corrected while information to support formal action
was obtained.
Region 2 stated that with respect to giving companies
two chances to comply as noted by the OIG, these
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
two chances refer to responding to § 3007 letters.
Region 2's practice was to allow a company a second
chance to provide requested information before
initiating formal action. The Region believes an
Administrative Law Judge (ALJ) will not be
sympathetic to a company given two chances,
whereas the ALJ might be unsympathetic if EPA took
action after only one attempt to obtain information.
Region 2 argued that although its NOV required
compliance within 30 days, the ERP allowed up to 90
days and this should be the standard. However, it
agreed that many files did not document the granting
of additional time for compliance and would begin
providing this documentation in the files.
The following section presents the Region's
comments on specific cases.
NY10 The second inspection date should have been used
since the decision to issue a § 3007 letter was made
after this inspection. Accordingly, it took 31 days to
issue the § 3007 letter after this inspection not 75
days as indicated by the OIG.
NY4 The wrong compliance date was entered in RCRIS
(correct date was September 11,1998). Therefore,
compliance was achieved in 50 days.
NJ16 The wrong compliance date was entered in RCRIS
(correct date was April 22, 1998). Therefore,
compliance was achieved in 22 days.
NY3 The facility had responded to the NOV in a timely
manner and hired a hazardous waste transporter, but
the specific hazardous waste facility was not
disclosed. Therefore, the inspector involved did not
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
NY14
NJ8
Recommendations
deem the company in compliance until this
information was provided.
Actual compliance was achieved prior to the effective
date of the Final Order.
This case was referred to NJDEP after Region 2
determined it could not take formal action. Therefore,
the facility did not remain out of compliance because
of a lack of effective follow-up and tracking.
This section provides the Region's comments on our
recommendations.
Region 2 generally agreed with Recommendation No.
1.
Regarding Recommendation No. 2, the Region
indicated it established and implemented time frames
for multi-media enforcement cases. Specifically, the
Multi-Media Enforcement Steering Committee meets
each month to identify, coordinate, manage and
expedite all multi-media enforcement.
For Recommendation No.3, Region 2 stated its
guidelines provide that if a possible SNC was
identified during an inspection, then a § 3007 letter
should be issued. The letter should be drafted within
two weeks after issuing the inspection report and
another week for the concurrence process. The
actual time might be shorter depending on inspector
workload.
With respect to Recommendation No. 4, pertaining to
alternative methods to obtain information in support
of a formal enforcement action, Region 2 believed
that regular use of § 3007 letters resulted in stronger
enforcement cases. In the future Region 2 would
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
issue NOVs documented during inspections. In this
way violations would be corrected while information
needed to support a formal action was obtained.
On Recommendation No. 5, the Region stated that
establishing time-frames in the MOA with NEIC for
submitting inspection reports was raised nationally a
few years ago but not resolved. Although Region 2
established time-frames for NEIC reports on specific
inspections, actual report submission was under
NEIC's control.
The Region did not comment on Recommendations
No. 6 and 7.
OIG COMMENTS We concur with the Region's corrective action to
document justifications for exceeding ERP time-
frames and establishing alternative time-frames.
We believe that in certain instances, Region 2 was
overly cautious in allowing violators a second chance
to respond to §3007 letters. Region 2 stated that it
could impose statutory sanctions if violators did not
respond to the letters. Additionally, it stated that the
§3007 letter was a formal request which commands a
company's attention in way that an informal request
cannot. Since a §3007 letter is a formal request
backed by statutes, we believe an ALJ would support
the Region's first request. In our opinion, allowing a
second chance takes away from "commanding" a
company's attention.
Even though the ERP allowed facilities a maximum of
90 days to come into compliance, the Region could
and has determined a lesser time-frame. Regional
enforcement actions gave facilities only 30 days. We
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
therefore believe it was appropriate to measure the
length of time a facility took to achieve compliance
against the time stated in the Region's enforcement
actions.
Our comments regarding the specific cases follow.
NY10 The ERP defines the evaluation date as the first day
of any inspection or record review during which a
violation is identified regardless of the duration or
stage of the inspection in which the violation is
identified. Therefore, we continue to use the first
inspection as the evaluation date.
NY4 RCRIS reported two violations against this facility
with only one violation as achieving compliance on
September 1, 1998. The Inspector stated that the
facility's September 1, 1998 response was
inadequate for one violation and he was planning a
re-inspection of this facility. Therefore, the facility
had not fully returned to compliance because all cited
violations had not been corrected.
NJ16 The August 11, 1998 RCRIS printout showed a
February 23, 1998 inspection with no scheduled or
actual compliance dates entered. An October 6,
1998 note in the file showed the Inspector called the
facility about their response. The facility's April, 22,
1998 response was faxed to the Region on October
6, 1998. The Region was obviously unaware of the
facility's compliance status prior to October 1998.
This facility was an example of inadequate follow-up
because it took the Region more than six months to
follow-up on their response.
NY3 The Regional files did not document that the facility
responded in a timely manner to the NOV. The
Region did not seek the facility's response until seven
47
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
months after the NOV due date. The inspection was
performed on March 4, 1998. A March 10, 1998 note
to the files stated the facility operator informed EPA
of the two companies which transported and
accepted the facility's solid waste. The note also
stated that the Inspector's review of the RCRIS
database disclosed that neither facility was permitted
to transport nor accept hazardous waste. Therefore,
an April 3, 1998 NOV was issued requiring the facility
to respond within 30 days. During our December
1998 site visit, we noted no facility response to the
NOV nor documentation of Regional follow-up until
December 8, 1998 when the Inspector called the
facility. The facility informed the Inspector that a
response had been sent to EPA. However, the only
response on file was dated December 9, 1998 (250
days after the inspection).
NY14 Although the facility may have achieved compliance
prior to issuing the final order, Region 2 spent a
considerable amount of time completing its
enforcement efforts. While additional time might
have been needed to enforce this case, no
documentation was available showing that the Region
had planned an alternate time frame. The issuance
of three §3007 letters delayed enforcement. As a
result, the Region could not determine appropriate
enforcement within 90 days nor issue a formal
enforcement action within180 days. Without
evidence of an alternative schedule, we don't know if
another time frame was proposed. We believe a
planned, alternative schedule could have helped the
Region use its resources more effectively.
NJ8 We found no evidence to show that the Region
followed-up to determine why the facility had not
responded to EPA's enforcement actions. Region 2
issued an NOV on April 7, 1998. The facility did not
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
respond within the required 30 days. A §3007 letter
was issued on June 5, 1998 requiring the facility to
respond within 15 days. Again the facility did not
respond. Region 2 then issued an Attachment to its
original NOV noting, "We have not received any
response to either the original Notice of Violation or
the RCRA §3007 Information Request." After
determining that the Region could not take formal
enforcement action, the case was referred to NJDEP
in November 1998, more than six months after the
inspection. In March 1999 NJDEP issued an
administrative order and penalty against this facility,
more than one year after Region 2's January 15,
1998 inspection.
Our evaluation of the Region's comments on our
recommendations follow.
Recommendations Recommendation No. 1 - We concur with the
Region's planned corrective actions.
Recommendation No. 2 - Our review did not indicate
that the Region had established and documented
time frames for multi-media inspections. Also, we did
not see any documentation showing that alternative
schedules had been created when the Region could
not meet the ERP time frames. If the Region does in
fact have procedures, they are not being followed or
need review and revision.
Recommendation No. 3 - After repeated requests, the
Region provided it's guidelines regarding information
request letters. The guidelines stated that "the
Section Chief/Team Leader provides a due date for
preparing the information request letters and tracks
its completion". When the response is received, a
decision is made to draft a complaint or issue another
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
information request letter. Although the guideline
does not provide timeframes for drafting or issuing
information request letters, RCRA officials advised
that supervisors normally give about two weeks to
prepare letters after the inspection report is finalized.
Recommendation No. 4 - Our recommendation to
seek alternative methods where appropriate was not
intended to prevent Region 2 from using §3007
letters. Rather, to consider taking action prior to
issuing the §3007 letter (e.g., issuing an NOV or
requesting information in the field) to expedite the
process by seeking corrective action/agreement at an
earlier stage. If that is not possible, then a §3007
letter could be issued. Our review showed the §3007
letter was generally issued a couple of months after
the inspection. As a result, it was difficult for the
Region to make a determination of appropriate
enforcement within 90 days.
Recommendation No 5. - The Region needs to again
raise the issue of timely NEIC inspection reports
submittal to the national level. If the ERP time frames
cannot be met then an alternative schedule should be
agreed upon and adhered to and documented.
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
CHAPTER 4
REGION 2 DID NOT ASSURE THAT RCRIS DATA
WAS TIMELY AND ACCURATELY ENTERED
Assuring that Regional and State personnel provide a
reliable RCRIS data base has been a continuing
problem in Region 2. Our review of 31 Regional
inspections disclosed untimely or inaccurate RCRIS
data for 12 of 16 New Jersey and 13 of 15 New York
files reviewed. Additionally, Region 2 did not assure
that the New Jersey Department of Environmental
Protection (NJDEP) recorded accurate RCRIS data.
Enforcement activity for all 11 State of New Jersey
cases reviewed was inaccurately or incompletely
entered into RCRIS. For example, four facilities' SNC
status was not correctly entered into RCRIS. Also, in
some cases, no information was reported on a
facility's return to compliance or Region 2's
enforcement activities. These issues were reported
in a previous OIG audit report.
These conditions occurred because the Region did
not establish adequate procedures or guidelines to
assure the timely and accurate entering and
reviewing of RCRIS data. Other contributing factors
were that (i) neither Department of Enforcement and
Compliance Assurance (DECA) management nor the
staff fully utilized RCRIS as a tracking or
management tool, (ii) many Inspectors believed
RCRIS was not "user friendly" thus leading to the
system's neglect and errors, and (iii) until recently,
the Region had not provided routine RCRIS reports to
NJDEP for their review to assure data was entered
accurately and completely.
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
As a result, RCRIS could not provide a true picture of
enforcement activity in Region 2. Without reliable
data, Headquarters cannot measure EPA's progress
in achieving the Government Performance Results
Act (GPRA) goals related to RCRA activities. Lack of
data also affects the public's right to know about EPA
and State enforcement activity.
RCRA Implementation EPA's FY 1996-97 RCRA Implementation Plan
Plans provides:
The essential areas for data quality
correspond to the national program
accomplishment strategic reporting measures
and current program status. These depend
upon the validity of the program universes and
the timeliness of the events. Regions and
States should assure that a key milestone
event which occurs in a given month . . . will
appear in national reports not more than two
months following completion of the activity.
EPA's Fiscal Years 1998-1999 RCRA Implementation
Plan for the Hazardous and Solid Waste Programs
provides:
EPA must have, at a Regional and National
level, certain basic information to manage and
track the RCRA Program. Our objective is to
retrieve these data reliably from the Resource
Conservation and Recovery Information
System (RCRIS) and the Biennial Reporting
System (BRS) in order to support RCRA
Program goals which were developed for the
Government Performance and Results Act
(GPRA). The reporting of national RCRIS
core elements is necessary to review and
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
track RCRA Program progress toward GPRA
goals.
While all the GPRA performance goals and measures
have not been finalized, a variety of approaches were
contemplated. According to the September 1997
EPA Strategic Plan:
EPA is striving to develop a range of measures
that reflect the broad spectrum of enforcement
and compliance activities, the degrees to
which they protect human health and the
environment, and industry compliance with
applicable laws. When this process is
completed, performance targets will be set
using compliance indicators appropriate to the
program and particular universe of regulated
facilities involved. The set of indicators could
include rates of significant noncompliance,
repeat violators, timely and appropriate actions
taken, economic benefits recovery, pollutant
reductions in high risk areas, and compliance
assistance results.
UNTIMELY AND
INACCURATE REGION 2
RCRIS DATA ENTRY
Region 2 Inspectors did not assure that RCRIS
data was entered timely or accurately for 12 of
16 New Jersey and 13 of 15 New York files reviewed.
One of the more common deficiencies noted was the
lack of information in fields of major events such as
enforcement action issued or a facility's return to
compliance. The following table illustrates eight New
York cases reviewed where events which occurred as
far back as 1996 were still not reported in a
November 25, 1998, RCRIS report.
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
Facility
NY1
NY8
NY10
NY11
NY12
NY13
NY14
BLANK FIELD
Actual Compliance Date
Enforcement Action
Enforcement Issued
Enforcement Action
Enforcement Issued
Actual Compliance Date
Actual Compliance Date
Enforcement Action
Enforcement Issued
Actual Compliance Date
Enforcement Action
Enforcement Issued
Actual Compliance Date
Actual Compliance Date
Enforcement Action
Enforcement Issued
Actual
09/27/96
NOV
09/03/96
NOV
06/21/98
05/07/97
06/11/97
NOV
05/15/96
06/09/98
NOV
05/22/98
03/16/98
By July 1998
Complaint
06/23/98
Incomplete data does not adequately inform
Headquarters or the public of the level of
enforcement activity in Region 2 and the status of
facility compliance with enforcement actions issued.
It may
give the unfair impression that facilities which
corrected cited violations ignored Federal
enforcement efforts. For example, RCRIS reported
violations at facilities NY11 and NY12, but did not
show that the facilities returned to compliance. Both
facilities responded to Region 2's NOVs on a timely
basis. Eight months later, the Inspector wrote to
facility NY11: "Your facility has been entered in our
Data Management System as having achieved
physical compliance with the violation cited in the
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
System for Entering
RCRIS Data
RCRIS Not Used as a
Management Tool
above referenced letter." The Inspector sent a similar
letter to facility NY12 almost six months after the
facility sent a timely response to its NOV. Yet, as of
November 1998, RCRIS did not show either facility as
in compliance.
A Region 2 DECA Environmental Engineer stated
that Inspectors entered their own data into RCRIS.
He believed inspection dates were entered timely,
however, other enforcement data may not be entered
until all the activities were completed. It was left to
the discretion of the individual Inspector when to
enter such data. He also stated that there was no
system in place to verify the accuracy of RCRIS.
The Engineer did not believe Headquarters'
knowledge of Regional activities was affected by
untimely data entry. The Region usually knew when
Headquarters planned to pull RCRIS data. At that
time Region 2 staff would update its RCRIS files. In
our opinion, this method was not working (as shown
in our previous table) since activity from 1996 was not
entered in RCRIS. Also, the DECA Section Chief
stated that Headquarters used the Docket system to
obtain information on formal enforcement actions.
However, the Docket system does not contain
information related to informal actions.
Neither Region 2 staff nor management officials
adequately used RCRIS for tracking enforcement
activity. The Engineer said staff did not use RCRIS
because it was a management tool. This view was
not entirely true. Before conducting an inspection,
Inspectors reviewed RCRIS data to determine the
enforcement history. Region 2 management also did
not fully utilize RCRIS as a management tool. The
DECA Section Chief said he used RCRIS to track
inspections and NOVs but not a facility's return to
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RCRIS Not
"User Friendly"
SNC Status
compliance. He admitted that RCRIS could be
utilized to a much greater extent in Region 2.
We believe greater use of RCRIS would have alerted
the DECA Section Chief of various problems. Even
the Section Chiefs limited use of RCRIS should have
shown that enforcement fields were often erroneously
blank. A review of RCRIS data would also have
highlighted cases such as NY9 where it took the
Region more than 90 days to determine to issue an
NOV. Additionally, no followup was conducted until
the facility was re-inspected, 298 days after the NOV
was issued. Also, a review of RCRIS data for NJ1
would have disclosed Region 2's untimely followup of
NJVs response to an NOV. This facility took 577
days to return to compliance.
Regional Inspectors stated that RCRIS data entry
was a problem. Inspectors complained that RCRIS
was not "user friendly". Information needed to be
"linked" and it was not easy to do. In some instances,
Inspectors said they had entered data which was not
appearing on our RCRIS report. One Inspector said
that because information was entered so infrequently
(three or four times a year), he sometimes forgot how
to enter data. He also said some people did not put
their own data into RCRIS and he entered data for
other people. While Region 2 cannot change the
Agency's computer system, it can provide greater
training to its Inspectors so that they can use RCRIS
with confidence and accuracy. Region 2
management may wish to discuss with Headquarters
whether RCRIS can be improved to make it more
user friendly.
Another RCRIS deficiency included the erroneous
reporting of a facility's SNC status. SNC status for
four of the 15 New York facilities was not accurately
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reported in RCRIS. Three facilities were reported as
SNCs even though formal enforcement had not been
taken. The remaining facility, which received formal
enforcement, was not listed as a SNC. Region 2
Inspectors agreed that the aforementioned three
facilities were erroneously reported as SNCs. In one
case, the SNC determination was made before the
response to a §3007 Information Request Letter
showed that a significant violation had not occurred.
The Inspector responsible for the facility which we
believe should have been reported as a SNC
provided the following comments. The Inspector for
facility NY7 said he probably should have coded it as
a SNC because a complaint was issued and it was an
oversight on his part.
Maintaining a reliable RCRIS data base was not only
a problem for the Region but the State of New Jersey
as well. As an environmental partner with New
Jersey, the Region was responsible for providing
assistance to the State in addressing this problem.
NJDEP RCRIS All 11 cases reviewed at the NJDEP had inaccurate
DATA ENTRY or incomplete RCRIS data. For example, actual
compliance dates were missing for eight of the cases.
In another case, violations were reported even
though the inspection report did not identify any
violations. In yet another case, a High Priority
Violator's NOV and penalty were not recorded in
RCRIS. Other errors included inaccurate/incomplete
information on enforcement action taken or violations
listed.
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Criteria
Results of NJDEP
Site Visit
The 1997-1998 Performance Partnership Agreement
(PPA) between Region 2 and the NJDEP provides that:
the NJDEP will continue to provide EPA with
facility specific inspection and enforcement
data, including information pertaining to EPA's
core performance measures, through EPA's
national data bases
RCRIS is one of EPA's national data bases.
PPA explains the importance of such data:
The
This information, when considered in
conjunction with other data, is important in
evaluating compliance and enforcement
program activity.
A week before our August 1998 site visit, NJDEP
officials stated that they had not received any RCRIS
printouts from Region 2. As a result, NJDEP was
unaware of the number of RCRIS errors which had
accumulated and could not correct them. We found
RCRIS errors in all the 11 cases we reviewed. Based
on the review of the recently received EPA data, the
NJDEP staff identified errors and immediately made
corrections.
Prior to July 1997, NJDEP Management Information
Section (MIS) staff was decentralized and had only
one day of RCRIS training. The NJDEP RCRA
Bureau Chief stated that the MIS staff was now
located in one office thus providing better overview
and training opportunities.
To continue to review and correct RCRIS data, the
NJDEP MIS Supervisor said they need to be able to
view a RCRIS report on the screen, download it, and
print it. All the RCRIS data for a facility cannot be
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viewed on a single screen. Also, NJDEP did not have
the ability to print out a report. Therefore, Region 2
staff needs to assure that NJDEP is provided a
means to continue its review and correction of RCRIS
data on a routine basis.
The Region 2 DECA Section Chief said that as of the
fall of 1998, NJDEP now had the capability to run
RCRIS printouts so that they could now verify the
accuracy of their RCRIS data.
CONTINUING ISSUE
In a December 15, 1993 audit report of Region 2's
Administration of State RCRA Enforcement Activities
(Report No. 4100128), the OIG reported that RCRIS
did not contain accurate and timely information
because Region 2 did not maintain quality control
procedures over State data collection and Regional
RCRIS data input. The OIG recommended that the
Regional Administrator:
1. Direct that RCRIS be closely reviewed
and timely monitored to assure
accuracy and consistency.
2. Develop and implement quality control
procedures to ensure the reliability and
integrity of the RCRA information
system.
We believe these recommendations are still valid
today.
RECENT ACTION
The DECA Branch and Section Chiefs stated they
have already taken action to improve RCRIS data
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quality and use. In November 1998, monthly
customized RCRIS reports were developed to provide
managers with a tracking tool for assuring that
facilities return to compliance on a timely basis and
that inspections, formal enforcement action, as well
as NOV information was entered. Region 2 has not
only provided the means for NJDEP to review and
correct RCRIS data but is doing so according to the
DECA Section Chief. He also said Regional
Inspectors have been advised that RCRIS data
quality is now a priority.
CONCLUSION Data quality is important to EPA both at a Regional
and Headquarters level. The Regions can use data
systems to help manage their work. GPRA
performance measures should be used to determine
if the program goals are being accomplished, and
also for budgeting purposes. Without timely and
accurate Regional and State data, Region 2's efforts
may be inaccurately reported which could affect its
budget. It is therefore important that Region 2
emphasize to all its Inspectors to maintain up-to-date
and accurate RCRIS data. At the time of our audit,
Region 2 took measures to improve data quality at
the Regional and State levels. DECA managers have
made accurate RCRIS data a priority and
emphasized its importance to the Regional
Inspectors. Also, the DECA Section Chief stated that
NJDEP now has a means to verify their data entries
and is doing so. However, the Region needs to
develop overall data quality control procedures to
assure that untimely and inaccurate RCRIS data will
no longer be a continuing problem.
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RECOMMENDATIONS We recommend that the DECA Chief:
1. Continue the development and
implementation of quality control
procedures to ensure the reliability and
integrity of RCRIS for both Regional and
State data.
2. Assure that Region 2 Inspectors and
NJDEP verify and correct RCRIS data
on a routine basis.
3. Re-emphasize to Inspectors DECA's
policy on designating facilities as SNCs.
Discourage reporting facilities as SNCs
until all information is obtained verifying
such status. Inspectors should also
obtain management approval of SNC
designations.
4. Increase use of RCRIS as a tracking
tool at staff and management levels.
REGIONAL RESPONSE Region 2 stated that their customized management
reports were being used as the data quality control
procedures (per OIG Recommendation No. 1) in
order to assure that both Region 2 and NJDEP
inspectors keep RCRIS accurate and up-to-date (per
OIG Recommendation 2).
Region 2 also stated that OIG Recommendations No.
3 and No. 4 have already been implemented.
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OIG COMMENTS We concur with the Region's efforts to improve the
use and quality of RCRIS.
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CHAPTER 5
OTHER MATTERS
ENFORCEMENT During our site visit to NJDEP, we found that NJDEP
AT NJDEP generally took timely and appropriate enforcement
action as well as assured that violators returned to
compliance in accordance with their enforcement
documents. NJDEP had an adequate system of
controls in place to assure that their RCRA program
functioned in accordance with EPA's ERP. We
believe NJDEP's use of a Regulatory Citation
Summary was an effective tool for identifying violation
classifications and penalties. As explained in detail
in Chapter 4, NJDEP's RCRIS data was not accurate.
However, the Region had begun to provide the
means for NJDEP to review and correct their RCRIS
entries.
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Region 2's Enforcement of the
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APPENDIX 1
REGIONAL RESPONSE
Attachment
Region 2 Response to the OIG Audit of
Region 2's Enforcement of RCRA
Executive Summary
The Executive Summary of this report, which focuses primarily on the effects of delayed reauthorization of
New Jersey's RCRA program, notes (p. iii) that Region 2 and New Jersey have agreed to a new base
program. We request that the report be updated to reflect that the proposed approval of New Jersey's
application for RCRA authorization has been signed by the Regional Administrator, and is expected to be
published for public comment in the Federal Register during May. A final decision will then be made on the
application, perhaps as early as June (the timing will depend on the volume of public comments received and
the time required for evaluation).
On page iii, under Improvements Needed in Region 2's Implementation of the RCRA
Enforcement Program, the OIG states that:
"Our review of 31 files disclosed that Region 2 did not determine appropriate
enforcement action within 90 days as required by the Enforcement Response
Policy for 7 of 15 (47 percent) New York and 2 of 16 (13 percent) New Jersey
cases. ...Region 2 did not effectively follow up on a facility's return to compliance
in 5 of 15 (33 percent) New York and 8 out of 16 (50 percent) New Jersey cases."
These ratios/percentages are not statistically meaningful since, as the OIG explains in Chapter 1, the cases
chosen for review were judgmentally selected and, in fact, were selected because these were problem cases.
Therefore, it is incorrect to draw conclusions with respect to overall performance levels concerning Regions
2's RCRA Enforcement Program. Based on this, these percentages should be removed from the report. If not
removed, the OIG should make it very clear here, and in other parts of the report where ratios/percentages
are cited, that these ratio/percentages are based on a judgmentally selected universe.
Chapter 2 - Delayed New Jersey RCRA Reauthorization Impacted Region 2's Enforcement
Program
The draft report is inaccurate in its recitation of the history of RCRA reauthorization in New Jersey in that it
does not acknowledge many early Regional efforts to bring problems to the State's attention, nor does it place
in a larger context, many of the activities occurring during the 1996-1999 period. In general, Region 2 had
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taken many of the steps suggested by the OIG on this issue, and while we agree with a number of the report's
recommendations, the Region does not believe this would have reduced the difficulty experienced during theprocess of the
RCRA authorization of New Jersey's . The draft report also overstates the environmental consequences of EPA's inability
to enforce RCRA regulations in New Jersey since October 1996.
On pages 10-12, the OIG's description of the events that occurred during 1996 to 1998 ignores early regional efforts
regarding the reauthorization of New Jersey's RCRA program, and other events are mischaracterized.
New Jersey's hazardous waste rules were originally scheduled to sunset in October 1995. In early 1995 senior Region 2
managers were in contact with New Jersey officials about this problem, which would have resulted in the lapsing of the
State hazardous waste rules. Upon sunset, neither EPA, New Jersey, nor citizens would have had RCRA base program
regulations to enforce. Partially as a result of these Regional contacts, the Governor, by Executive Order, extended the life
of the existing State regulations for one year (i.e., until October 1996).
After this one-year extension, Region 2 was again in contact with New Jersey officials. Among other contacts, in June 1996,
Region 2's Division of Enforcement and Compliance Assistance (DECA) wrote the New Jersey Department of
Environmental Protection (NJDEP) Assistant Commissioner for Site Remediation about potential issues bearing on the
State's ability to implement corrective action and the wording of any Memorandum of Agreement (MOA). That same
month, Region 2 notified the New Jersey Attorney General's office that the Region might not be able to authorize the State
for corrective action under RCRA.
Earlier that spring, the Region had been in contact with EPA Headquarters about various issues surrounding New Jersey's
adoption of new State regulations before expiration of the authorized regulations in October 1996, and the delayed
authorization by EPA of the new regulations. Insuring that State hazardous waste regulations were on the books was judged
to be the most critical issue, even if (as the Region recognized) there would be a period of time before EPA could enforce
some of them.
By late summer 1996, NJDEP officials were aware of EPA's concerns about its upcoming application for authorization of
the about to-be- adopted new State program, including issues concerning the equivalence of its corrective action
program to the federal program and the draft MOA previously submitted by NJDEP. None of the events described
above are reflected -in the chronology of events noted by the OIG in the draft report.'
Contrary to what is stated on page 11, NJDEP did not submit a draft application to Region 2 in October 1996. (For
instance, the final part of the draft Attorney General's statement was not submitted until December 1996.) Also, the
implication in the draft report that the Region's March 1997 letter to NJDEP was its first written feedback to the State
agency is misleading. For example, on October 31, 1996, the Region had sent the State a revised draft of the MOA for its
review.
In early 1997, the Region had sent NJDEP for execution, a copy of the MOA that had been negotiated by the staff of each
agency, but NJDEP had already raised the issue of the relationship of the proposed MOA to the new National
Environmental Performance Partnership System NEPPS) and, specifically, had questioned whether MO As were still needed
or should be superseded by the new Performance Partnership Agreement (PPA). This issue ~ which the draft
report never mentions ~ was being discussed at the highest levels of NJDEP and Region 2 during
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Region 2's Enforcement of the
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1997, and was but one complicated issue that delayed authorization of New Jersey's new
program. The closure issue ~ which the draft report highlights — was not identified until 1997 as
a programmatic issue bearing on the Sta' te's authorization application, and the issue was elevated
as soon as it proved resistant to staff efforts to address and resolve it. In the first part of 1997, it
appeared the issue would not prove so intractable as it later proved to be: NJDEP staff did not
disagree with Region 2 staffs assessment of the closure situation and had begun addressing the
situation. However, the situation could not be fully addressed until NJDEP management was
fully apprised of problems and concerns and had the opportunity to address resolution of same.
The chronology of events in 1998 is also inaccurate. The draft report stresses the fact that the State did not respond in
writing to the Regional Administrator's September 8, 1997 letter until June 1998. While the State's formal response may
have been delayed, the chronology makes no mention Of interim events such as a March 1998 meeting attended by senior
officials of Region 2 and NJDEP, in which these issues were discussed. Upper management in the Region was, prior to
1998, involved in or informed of all of the issues holding up authorization of the new State program (including the concerns
about federal enforce ability). Clearly, as of January 1998, the Region made a higher-level and more concentrated "full
court" press on all these issues.
On page 11 the OIG states:
"Region 2 allowed NJDEP to delay the application process by not timely elevating action to a higher level when an impasse
was reached."
There never was an "impasse" (disagreement on the need to make program changes). The closure problem first came to light
in November 1996 but sufficient information wasn't compiled to demonstrate that it was significant enough to delay
authorization until January 1997. At that time, this information was highlighted to Region 2 management through weekly
reporting procedures and in a draft response from the Regional Administrator to NJDEP Commissioner in early 1997. In
discussions and correspondence over the next two years, NJDEP did not really question the necessity of making the required
program changes concerning closure. However, some confusion regarding the authorization impacts, and competing
priorities at the State level, resulted in a delay in bringing this issue to a resolution.
On page 11 the OIG states:
"NJDEP submitted a draft application to Region 2 in October 1996. According to 40 CFR §271.5(b), Within 30 days of
receipt of a State program submission. EPA will notify the State whether its submission is completes ...Region 2 did not
write of its concerns with NJDEP's proposed closure activities and corrective actions until March 1997, well beyond the 30
daytime limit."
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The OIG does not acknowledge that there was significant discussion and correspondence
between Region 2 and NJDEP at the staff level, concerning NJDEP's application, during the period from
November 1996 to March 1997 (see above). However, since the issues raised by Region 2 involved
multiple NJDEP program units, a mutual resolution required the involvement of senior NJDEP
management. As a result, in March 1997, the Region began to draft a detailed response to NJDEP
management. This letter, from Region 2 senior management, was sent on May 9, 1997 and provided a
detailed description of the closure problem. Also detailed were a description of RCRA closure
requirements and recommendations for coordination procedures. The Region believes that this letter was
an appropriate step at that time, since closure was an emerging issue that could have been resolved
separate from the previously identified concerns regarding corrective action. Based on the above, Region 2
believes the OIG should make it clear in the final report that the closure issue was not perceived by the
Region as a significant reauthorization issue
until January 1997 and that once it was, it began a process with the NJDEP to resolve it.
On page 13 the OIG states
"For more than two years, EPA and NJDEP disagreed on three main issues in developing the MOA. These
issues were NJDEP's need to:
(1) establish a RCRA Coordinator position to input RCRIS data and track
closures;
(2) prepare a closure strategy; and
(3) include public participation under corrective action plans."
Although the list of issues is generally correct, the Region believes that to say there was disagreement on
these issues is not completely accurate. Region 2 and NJDEP agreed in concept on what needed to be done
to resolve the issues, however, NJDEP senior management needed time to understand the programmatic
and resources implication of a detailed solution. Had NJDEP informed the Region that it refused to
make the necessary changes, the Region would have taken appropriate action.
The draft report overlooks the larger context of the issues surrounding RCRA Reauthorization in New
Jersey which made their prompt resolution difficult.
The Region's efforts to authorize the new State regulatory program were complicated by larger
developments at the federal level. In the summer of 1996, the Region underwent a major reorganization of
its structure and its staff and Region 2 managers were managing new programmatic areas. As a result, it
took time to identify and understand the ramifications of identified issues and how these related to
authorization of the program. Since NJDEP generally was running an effective hazardous waste program,
Region 2's withdrawal of New Jersey's hazardous waste program or withdrawing/withholding grant funds
were not judged to be appropriate options.
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NJDEP's Commissioner felt that efforts should be directed towards development of a new PPA, and
not the"old style" MOA that Region 2 had sent the State in 1997. This issue was discussed at the senior
management level and it was agreed that the authorization MOA was appropriate.
In addition, the NJDEP had previously reorganized to have consistent cleanup programs without regard to
whether the cleanup was occurring under the State Spill fund, ISRA formerly ECRA), or other specific
State statutes. The new organizational structure of the State had advantages, but a byproduct was the
RCRA closure problem that Region 2 identified in 1997, the solution of which was made more difficult by
the new State structure. In short, efforts to authorize New Jersey's new program encountered a series of
issues which arose in succession and which were part of larger cross-currents.
The OIG overstated the environmental impact of the delay in New Jersey's RCRA reauthorization. On
pages 14 and 15 the OIG states: "...during this period EPA basically was stripped of one of its
fundamental powers, RCRA enforcement in New Jersey. Such a loss was not justified considering the
harm to the public and environment as illustrated by the following cases."
On page 9 the OIG also states:
"serious RCRA violators continued to harm the environment with impunity.", and
"The Federal government must hope that the State would take appropriate enforcement action once a case
was referred. If not, the Federal government had no recourse."
Throughout this period, EPA retained its authority to issue orders under statutory sections such as
3008(h) (interim status orders), 3013 (study orders) and 7003 (potential endangerment situations). All
statutory provisions, such as the requirement to have a pen-nit for the treatment, storage or disposal of
hazardous waste, remained in full legal effect, as did the Section 3008(e) knowing endangerment section.
Facilities were still under permits, and provisions of law adopted pursuant to the Hazardous and Solid
Waste Act (HWSA) Were in legal effect. While the issue of the enforceability of the federal RCRA
regulations was serious and in some cases made referral of an entire matter to the State for prosecution
sensible, EPA retained many enforcement tools and could have acted itself if an ongoing environmental
harm were occurring. Even if for some particular reason a federal criminal prosecution could not be
initiated, EPA could still have issued an order to enjoin any potential imminent and substantial
endangerment. Any statement to the contrary is alarmist and inaccurate.
The assumption that companies were able to break the law "with impunity" is wrong. During FY 1997 and
FY 1998, New Jersey initiated approximately 100 enforcement actions for hazardous waste-related
violations.
The OIG's own review indicates that New Jersey's enforcement actions were generally timely and
appropriate. Against this background, the concerns expressed in the draft report seem overdrawn.
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Recovery Act (RCRA)
As to the discussion of Criminal Impacts on pages 15 and 16 if an endangerment involving solid or
hazardous waste had been continuing, the Region could have issued a unilateral order even if a particular
prosecutor concluded a federal criminal prosecution was problematic. (Personnel assigned to the case
which the region believes is Case No. 2 do not recall that the water table was contaminated.) In only two
of the five cases mentioned was a decision made to refer part or all of the case to the State as a result of
questions surrounding the enforce ability of the State RCRA regulations. Case I was referred to the State
within three weeks of EPA learning of it. In Case 2, county prosecutors were involved in the case within
three days of the Criminal Investigations Division (CID) learning of the matter, and three weeks later a
large meeting was held with various federal, State, and county officials. Two of the five cases cited are
still being actively pursued by federal investigators and prosecutors, so any difficulties enforcing the
RCRA regulations did not end the case.
All the above observations are meant to put the situation in perspective and are not intended to suggest
that the Region believes this was a desirable situation.
The OIG also discusses two civil cases on pages 17 and 18. Case 1 was not initially considered a SNC by
the Region as the OIG states. It became a SNC due to its lack of response to the initial NOV, and the
Region's subsequent determination that there was contamination at its site. At that time, the Region issued
a 3007 letter to obtain the information needed to support a formal enforcement action. The Region did not
immediately refer this case to the, NJDEP because, based on the type of hazardous waste involved, it
believed it could take formal action. When the facility did not respond to the 3007 letter, a formal
enforcement action was prepared and was sent to ORC for review. However, ORC then determined that
the Region's enforcement authority was problematic and the best course of action would be to refer the
case to the NJDEP.
Region 2 immediately referred the case to NJDEP, and NJDEP issued an administrative order and penalty
based on the information provided by Region 2. The State did not need to conduct its own inspection. It
should be noted that this information was provided to the OIG but the OIG incorrectly states, on page 18,
that NJDEP had not yet acted on this referral. Also, on page 23, the OIG incorrectly states that NJDEP
would not issue an enforcement action without doing its own inspection. These statements need to be
revised.
The second case involved a company that was issued a NOV for minor violations. This company then
took more than six months to respond to the NOV and a subsequent 3007 letter. - However, based on its
initial response, Region 2 was aware that it had corrected most of the violations except for some
paperwork deficiencies in its Contingency Plan, personnel training records, and land disposal restriction
notification records. Region 2 then issued a 3007 letter/NOV in response to these violations. Ultimately,
the company corrected these paperwork violations, although in an untimely manner.
The Region would never refer to NJDEP, such a minor, low priority case as this. It would be a poor use of
limited resources (State or EPA) better utilized in the many higher priority cases. For example, the Region
2 inspector involved in this case, was at that time, focusing on a facility (near a public school) that needed
to develop a work plan for the removal of over 200 drums of hazardous waste. As explained to the OIG,
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only SNCs that the Region 2 could not address were referred to NJDEP. Since the violations in the second
civil case posed no threat to the environment or public health, Region 2 totally disagrees with the OIG
suggestion that a referral to NJDEP should have been made. In addition, the company did not gain any
economic benefit as the OIG suggests.
General Comments on the OIG Recommendations, pages 20 - 21
Region 2 believes that many of the steps recommended in the draft report were in fact undertaken. Others
were considered but not adopted, and the Region believes that their adoption would not have had
significant benefit. None of the recommended steps made, or would have made, a significant difference in
more quickly resolving this complex and multi-faceted problem. The Region agrees, however, that earlier
written communication of the enforce ability concerns to the Regional Administrator and the Criminal
Investigations Division - i.e., to augment and amplify on the oral communications that occurred - might,
in hindsight, have been advisable.
The following comments address specific recommendations included in Chapter 2 of the draft report:
OIG Recommendation No. 1, page 20:
"Develop a process when a State notifies EPA of its intention to repeal its RCRA program. This process
should endeavor to avoid a lengthy period where EPA's civil and/or criminal enforcement authority would
be adversely effected. The process should consider:
(a) Establishing reasonable time frames for the State's submission of a complete formal authorization
application;
(b) Developing procedures to expedite enforcement referrals to the State until reauthorization is
formally approved. The procedures should outline necessary documentation the State requires to
avoid reinspecting a facility before it initiates formal enforcement action;
(c) Elevating the reauthorization discussions to a higher management level including the Regional
Administrator for more aggressive actions if delays are encountered at the program level;
(d) Withdrawing partial or complete State authorization or suspending/withdrawing Federal grant funds if
the State does not timely respond to specific EPA concerns."
As indicated in the above chronology of events, EPA was aware in advance of the sunsetting of the State
program in 1995 and the State's proposed adoption of a different program in 1996. The new MOA that
has been negotiated as part of this reauthorization effort requires (as did the MOA negotiated with New
York in 1992) that the State notify EPA sixty days in advance of any proposed changes in its legal
authorities that would impact the authorized program. In addition, a schedule had been discussed with the
NJDEP in 1996 for its submission of a program, approval application, but due to the
unforeseen complexities described above, the schedule unraveled.
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The Region does not see the need for, or utility of, a new more formalized referral process in the civil or
criminal enforcement arena. Of the five criminal cases discussed on pages 15 - 17 of the draft report, the
State was brought into two. In one case, local prosecutors were contacted within three days of the EPA
Criminal Investigations Division (CID) learning of the matter, and in the other, a referral to the State
occurred within three weeks of CID first learning of the matter. As previously described, civil cases were
also referred to the State, as appropriate, and no reinspection by the State was required to gather more
evidence in these cases.
As indicated above, the Region believes upper management was timely involved in and aware of the
various issues that delayed authorization of the State's newly adopted program. In addition, those
managers involved in the regional criminal program were also aware of the situation at an early date.
Nevertheless, in hindsight, the Region agrees that written notification in 1996 explicitly informing the
Regional Administrator and CID of the enforce ability issues might have been advisable.
Given the ongoing operational responsibilities that were carried by the State throughout this period, full
program withdrawal for a finite period of time would have been enormously disruptive to regulators and
the regulated, and burdensome to the Region. The Region considered program withdrawal options, but
continues to believe that it made the night choice to work with the State to get the new new program
authorized, rather than initiating program withdrawal processes.
OIG Recommendation No. 2, page 2 1:
"Complete the remaining steps for approving NJDEP's new base program in accordance with the time
frames established by 40 CFR $271.
The Region does not disagree with this recommendation, but underscores that pursuant to 40 CFR
§271.20(d), the 90-day deadline starts when the Region receives a complete program submission. New
Jersey submitted a complete final application on January 14, 1999, and the Region expects to public
notice its proposed approval of the application during May 1999.
OIG Recommendation No. 3:
"In conjunction with NJDEP, implement an expeditious referral procedure so that any current or
additional cases identified can be timely enforced by the State until Region 2 regains its enforcement
authority."
The Region believes that it is already referring appropriate cases to the State and agrees that it should
continue to do so in a timely manner as long as necessary.
Chapter 3 - Improvements Needed in Region 2's Implementation of the RCRA Enforcement
Program
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
As the OIG notes, of the nine cases in which Region 2 did not make the appropriate enforcement
determination within 90 days, and did not take timely enforcement action, two were complicated by being
multi-media cases and two were the result of untimely National Enforcement Investigations Center (NEIC)
reports. The untimeliness of three of these four cases was due to factors beyond the control of the RCRA
Enforcement program, and legitimately fall within the 20% of SNC cases with unique factors that the
Enforcement Response Policy (ERP) recognizes will not meet ERP applicable time frames. (Although NY
case 13 was a multi-media case, the follow-up issuance of a 3007 letter and Notice of Violation (NOV)
should have proceeded while the other programs planned their activities.) However, this is not reflected in
the overall findings in the Executive Summary nor at the beginning of Chapter 3. It would be more
accurate for the report to state that of the nine untimely cases, three resulted from factors outside of the
RCRA Enforcement Program's control. We agree with the OIG that Region 2 did not document these
factors in the file nor provide alternative time frames for taking action. We plan to do so in the future.
Another case (NY case 14) also fell into the ERP's'20 % category. This case dealt with very complicated
reuse/recycle issues and there was a need to obtain a significant amount of information from the facility.
Again, we acknowledge that there was a lack of documentation in the file as to as. to this situation and
that alternative time frames for issuing the enforcement action were not specified.
Of the five remaining untimely cases, four were the result of the need to issue 3007 letters. With respect to
the OIG's recommendation to consider using alternative methods to 3007 letters to obtain information in
support of a formal enforcement action, Region 2 believes that regular use of EPA's information request
authority in section 3007 of RCRA is appropriate and results in stronger enforcement cases.
There are many compelling reasons for issuance of 3007 letters. These formal requests for -
information require that the company officially respond to questions and provide requested
documentation. Thus, the response to a 3007 letter can fill the gaps in information that result
from the absence of appropriate staff, when the Region conducts an unannounced inspection.
This was the situation in NY case 6, where the escort did not realize that cell phones were used
as the alarm/communication system (discussed on page 28 and page 29 of the draft report).
Another benefit of 3007 letters is that an inspected company's response to a 3007 letter alerts
Region 2 as to whether there is any disagreement concerning information provided by the
inspection. If the company agrees with the inspection findings, EPA may be able to resolve the
case on motion, saving the resources and travel expenses that a full trial may involve. If the
company disputes the findings, EPA can assure that its case is well grounded. If appropriate,
EPA can send a follow-up letter confirming the information provided .provided to EPA by the company.
In a complicated program such as RCRA, this may be necessary to sort out factual nuances that
may affect the regulatory status of a facility. Having a formal response from the company makes
it harder for the company to distance itself from the information cited and provides EPA with a
stronger foundation for any eventual enforcement case.
In the late 1980s when Region 2 forwarded several civil judicial referrals to the U.S. Department of
Justice for prosecution, the referrals were returned to EPA with the suggestion that formal information
request letters be issued to the potential defendants. Since then, it has been routine practice to issue such
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Recovery Act (RCRA)
letters. The government has the burden to prove any violations cited in an enforcement case; having a
statement from the company enhances the government's ability to do so, and makes it easier to litigate the
subsequent case. In addition, the regular use of 3007 letters helps to insure that the agency is not required
to pay the other side's legal fees and other costs. Under the Equal Access to Justice Act, as amended by the
Small Business Regulatory Enforcement Fairness Act (SBREFA), EPA may have to pay a company's
costs if the agency is found to have initiated a case without substantial justification. Since many
companies that EPA inspects fall under SBREFA, having a formal response from a company reduces the
likelihood that EPA will be in that position.
The Region does not believe that formal requests for information duplicate the inspection. Rather, the
3007 letter is used to obtain additional information on any areas of concern raised by the inspection. The
letters are very efficient in that multiple questions can be posed to the company. And, since such a formal
request for information is backed by a statutory sanction for lack of a response, the formal request
commands a company's attention in ways that an informal request cannot. Receipt of a formal request for
information will prompt the company to initiate remedial steps even if no explicit order has been received
from EPA (as was done by facilities NY cases 06, 07, and 14). For all these reasons, Region 2 believes
that the use of Section 3007 letters is appropriate ate and any potential disadvantages in using them far
outweigh the advantages.
However, in the future, Region 2 will issue Notice of Violations (NOVs) along with any 3007 letters for
violations documented during inspections. In this ways these violations will be corrected while we obtain
the information needed to support a formal enforcement action.
With respect to giving companies two chances to comply as noted by the OIG on page 27, these two
chances refer to the response to 3007 letters. It is normal Region 2 practice to allow a company a
second chance to provide the requested information before a formal action is initiated We believe that an
Administrative Law Judge (ALJ) will not be sympathetic to a company that was given two such chances
whereas the ALJ might be unsympathetic to EPA if we took an action after only one attempt to obtain the
information.
Some data in the table on page 27 are incorrect.
The wrong inspection date was used for NY case 10; the second inspection date should have been used
since the decision to issue a 3007 letter was made after this second inspection. Accordingly, it took 31
days to issue the 3007 letter after this inspection, not the 75 days indicated by the OIG. On page 30, the
OIG states:
"Region 2 did not effectively follow up on cited violations to ensure facilities returned to compliance in 5
of 15 New York and 8 of 16 New Jersey cases. Three of the five New
York and all eight New Jersey cases were issued informal enforcement action. The number of days for
these facilities to return to compliance (if they did) far exceeded the 30 days outlined in the issued
enforcement action."
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
The OIG found that Region 2 allowed 13 of the 31 facilities selected for review to remain out of
compliance because it did not effectively follow up on these facilities and track their compliance status.
This finding is based, in part, on Region 2 allowing facilities 30 days to comply with the violations cited in
the NOV. The 30 day period is the shortest period of time that we believe a company needs to correct its
violations. As the OIG notes, the Enforcement Response Policy (ERP) allows 90 days for a company to
correct its violations. Region 2 believes it is this standard, set by National Policy, that the OIG should be
applying in this audit. If the OIG used the 90 day period allowed in the ERP as the standard, four
additional facilities would have come into compliance in a timely manner. These are NJ case 6 (31 days to
come into compliance from issuance of the NOV); NJ case 9 (42 days to comply); NJ case 13 (77 days to
comply); and, NJ case 15 (45 days to comply). In addition, prior to issuance of this draft report, the
Region informed the OIG that the wrong compliance dates were entered into RCRIS for NY case 4 and NJ
case 16; the correct dates are September 11, 1998, and April 22, 1998, respectively. These dates indicate
compliance achieved in 50 and 22 days, respectively. Region 2 recognizes that facilities may need more
than 30 days to comply with the NOV and grants reasonable requests for additional time. It is true,
however, that the files in many cases do not document such requests and the granting of additional time for
compliance. The Region will begin, providing this documentation in the file.
Additional information on specific cases described by the OIG:
The company involved in NY case 3 (a conditionally exempt small quantity generator) had, in fact,
responded to the NOV in a timely manner. Its response indicated that it had hired a hazardous waste
transporter to transport the wastes in question to a hazardous waste facility. However, because the
specific hazardous waste facility was not disclosed, the inspector involved did not identify the company as
in compliance until this information was provided. Based on its initial response to the NOV, however, the
company came into compliance within 30 days of issuance of the NOV.
For NY case 10, the correct scheduled date of compliance is that found in the Final Order negotiated
with the company. Compliance was achieved in accordance with this schedule (60 days after the effective
date of the Final Order). Use of the scheduled date of compliance found in the complaint is incorrect since
a complaint is a proposed action.
For NY case 14, actual compliance was achieved prior to the effective date of the Final Order.
NJ case 8 was referred to the NJDEP after it was determined that Region 2 could not take formal action.
This facility had failed to respond to an NOV and a 3007 letter. As discussed above under Chapter 2, a
complaint was then drafted but it was determined that EPA did not have enforcement authority. It is
incorrect to list this facility as one that was allowed to remain out of compliance because of lack of
effective follow-up and tracking. This facility was clearly followed-up on in a timely manner and was
referred to the NJDEP once the Region decided it could not take formal action.
Based on the above, Region 2 agrees with the OIG on only three facilities that remained out of compliance
beyond the 90 day time frame allowed in the ERP (NY case 9, and NJ cases 1 and 2). Of these, both New
Jersey cases had minor violations that posed no risk to public health and/or the environment and for which
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Resource Conservation and
Recovery Act (RCRA)
no economic benefit of non-compliance was derived. NY case 9 was a conditionally exempt small quantity
generator that had not made a hazardous waste determination with respect to its small quantity of solvent-
contaminated rags and flourescent light bulbs. In this case, the Region 2 inspector repeatedly attempted by
telephone to get a response to the NOV. Finally, he decided to re-inspect the facility. The re-inspection
found that the company had come into compliance but had not responded to the NOV. Issuing a formal
enforcement action to this facility was deemed inappropriate in light of limited Region 2 RCRA
enforcement resources and other higher priority cases.
Based on the above, the following OIG statements on pages iii and iv, are incorrect and should be removed
from the report. These statements are:
"Region 2 did not effectively follow up on a facility's return to compliance..." and,
"As a result, hazardous waste which was not managed in an environmentally sound manner risked the
protection of human health and the environment. Also facilities may not have been treated consistently and
violators may have received an unfair economic advantage."
OIG Recommendation No. 2, page 35:
"We recommend that the Regional Administrator instruct the DECA Chief to establish and implement time
frames for coordinating multi-media enforcement cases."
Region 2 has had such procedures in place since the early 1990s. Each month, the Multi-Prograin
Enforcement Steering Committee meets to identify, coordinate, manage, and expedite all multi-media
enforcement cases. It should be noted that programs do not have to wait to issue informal enforcement
actions, if that is the appropriate response, when other programs are still determining the need/type of
enforcement response.
OIG Recommendation No. 3, page 35:
"We recommend that the Regional Administrator instruct the DECA Chief to develop procedures or
guidelines regarding the use of Information Request Letters and the issuance of a NOV."
Region 2 does have a guideline regarding the use of 3007 letters. If, as a result of an inspection a
possible SNC is identified, then a 3007 letter is issued. Then, the following time frames are in effect: two
weeks for the inspector to prepare the inspection report; one week for supervisor/team leader review and
report finalization; another two weeks for drafting the 3007 letter, and one week for the concurrence
process. Actual time frames may be shorter depending on workload of the inspector. For example, it took
only 17 days to issue a 3007 letter in NY case 14 because the inspector was not involved in another major
case at that time.
It should also be noted that in FY 1998, Region 2 conducted about 35% of the inspections conducted by
the EPA's regional offices nationwide. As a result, Region 2's inspection and enforcement follow-up
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
workload is significantly greater than that of other Regions and Region 2 inspectors typically have
numerous inspection reports to prepare. If this was not the case, the above time frames would be shorter.
OIG Recommendation No. 5, page 35:
"We recommend that the Regional Administrator instruct the DECA Chief to establish time frames in the
MOA withNEIC [National Enforcement Investigations Center] for submission of inspection reports."
This issue was raised nationally a few years ago but not resolved. Region 2 establishes time frames for
inspection report submissions with NEIC on specific inspections, but ultimately the submission of the
reports is under NEIC control.
Chapter 4 - Region 2 Did Not Assure that RCRIS Data was
Timely and Accurately Entered
On page 44 of the draft report, the OIG provides an extract from OECA's February 1998 Enforcement
and Compliance Evaluation Report on Region 2. The extract implies that Region 2 knew that the States'
RCRIS data entry was deficient. However, this extract has nothing to do with the State's RCRIS data
entry. Careful reading of OECA's report indicates that it refers to the accuracy of the large quantity
generator and TSDF universes in RCRIS, and the difficulty OECA had in determining State inspection
coverage of these universes, as well as conducting compliance rate and significant non-compliance
analyses of same. This becomes clear when reading OECA's discussion on pages 35, 74, and 75 in that
report. It should be noted that Region 2 is in the midst of an extensive RCRIS database clean-up effort.
On page 46, the OIG recognizes the actions that Region 2 started last year to improve the data quality in
RCRIS. Although Region 2 already adequately tracked facilities' compliance status, RCRA managers
have begun to receive customized management reports to ensure that all compliance and enforcement data
are being entered into RCRIS in a timely manner. The monthly customized reports are not only being used
to ensure that all NOVs and Return to Compliance data are entered, but to make sure inspections and
formal enforcement actions are entered as well. These monthly reports are being used as the data quality
control procedures recommended by the OIG (Recommendation No. 1, page 47) in order to assure that
both Region 2 and NJDEP inspectors keep RCRIS accurate and up-to-date (Recommendation No. 2).
OIG Recommendations No. 3 and No. 4 have already been implemented, as the OIG recognizes on page
46 under the heading Recent Action. Accordingly, in the interests of even-handed reporting, the OIG
should note in the Executive Summary the "Recent Action" Region 2 has taken to improve RCRIS data
quality.
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
Chapter 5 - Other Matters
The OIG found that the NJDEP generally took timely and appropriate action and returned facilities to
compliance in a timely manner, and had procedures in place to assure that its RCRA program functioned
in accordance with the EPA's ERP. In the interests of even-handed reporting, these findings should also be
included in the Executive Summary. In addition, little information is provided concerning the role that
Region 2 has played in assisting NJDEP in development and implementation of its program, through
oversight and program/technical assistance.
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Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
Region 2s Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
APPENDIX 2
DISTRIBUTION
Office of Inspector General
Office of Inspector General - Headquarters (2421)
Executive Assistant to Inspector General (2410)
Assistant Inspector General for Audit (2421)
Deputy Assistant Inspector General for Internal Audits (2421)
Divisional Inspector Generals
EPA Region 2
Regional Administrator
Assistant Regional Administrator for Policy and Management
Director, Department of Enforcement and Compliance Assurance (DECA)
Chief, RCRA Compliance Branch, DECA
Director, Division of Environmental Planning and Protection (DEPP)
Chief, RCRA Program Branch, DEPP
Office of Regional Counsel
Audit Coordinator
Headquarters
Agency Audit Follow-up Coordinator (2724)
Agency Audit Follow-up Official (2710)
Assistant Administrator for Enforcement and Compliance Assurance (2201 A)
Assistant Administrator for Solid Waste and Emergency Response (510 1)
Associate Administrator for Congressional & Legislative Affairs (130 1)
Associate Administrator for Communications, Education & Public Affairs (170 1)
Associate Administrator for Regional Operations & State/Local Relations (1501)
EPA Library (3404)
Other
New Jersey Department of Environmental Protection
General Accounting Office
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