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
                                         Resource Conservation and
                                              Recovery Act (RCRA)
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                Vlll

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                      Region 2's Enforcement of the
                        Resource Conservation and
                          Recovery Act (RCRA)
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


                                     7

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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
                                      10

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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.
        11

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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,


                                      12

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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
        13

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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.
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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.
        29

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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
        35

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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.
        36

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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.
                                      37

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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
                                      38

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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.
        40

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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.
                                      41

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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.
                                      42

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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
                                      43

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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
                                      44

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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
                                      45

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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


                                      46

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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)
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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.
                                      54

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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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                                                       Region 2's Enforcement of the
                                                          Resource Conservation and
                                                              Recovery Act (RCRA)
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
                                      57

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                                                        Region 2's Enforcement of the
                                                          Resource Conservation and
                                                              Recovery Act (RCRA)
                              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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                                                        Region 2's Enforcement of the
                                                          Resource Conservation and
                                                              Recovery Act (RCRA)
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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                                                        Region 2's Enforcement of the
                                                          Resource Conservation and
                                                              Recovery Act (RCRA)
                              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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                                                       Region 2's Enforcement of the
                                                          Resource Conservation and
                                                              Recovery Act (RCRA)
                              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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                                                       Region 2's Enforcement of the
                                                         Resource Conservation and
                                                             Recovery Act (RCRA)
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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                                                          Region 2's Enforcement of the
                                                            Resource Conservation and
                                                                Recovery Act (RCRA)
OIG COMMENTS               We concur with the Region's efforts to improve the
                               use and quality of RCRIS.
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                                                    Region 2's Enforcement of the
                                                      Resource Conservation and
                                                         Recovery Act (RCRA)
                          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
                                         Resource Conservation and
                                             Recovery Act (RCRA)
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                                                                           Region 2's Enforcement of the
                                                                             Resource Conservation and
                                                                                  Recovery Act (RCRA)
                                        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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                                                                            Region 2's Enforcement of the
                                                                              Resource Conservation and
                                                                                   Recovery Act (RCRA)
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
                                                                                Resource Conservation and
                                                                                    Recovery Act (RCRA)
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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                                                            Region 2's Enforcement of the
                                                               Resource Conservation and
                                                                    Recovery Act (RCRA)
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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                                                             Region 2's Enforcement of the
                                                                Resource Conservation and
                                                                    Recovery Act (RCRA)
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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                                                             Region 2's Enforcement of the
                                                                Resource Conservation and
                                                                     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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                                                             Region 2's Enforcement of the
                                                                Resource Conservation and
                                                                     Recovery Act (RCRA)
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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                                                             Region 2's Enforcement of the
                                                                Resource Conservation and
                                                                     Recovery Act (RCRA)
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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                                                             Region 2's Enforcement of the
                                                                Resource Conservation and
                                                                     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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                                                             Region 2's Enforcement of the
                                                                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
                                        80

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