®/l  OFFICE OF INSPECTOR GENERAL
     REPORT OF AUDIT

      Validation of Air Enforcement Data
      Reported to EPA by Massachusetts

          E1KAD7-01 -0017-7100305


           September 29,1997

-------
 ®/l  OFFICE OF INSPECTOR GENERAL
       REPORT OF AUDIT
Inspector General Division(s)
 Conducting the Audit

Region(s) covered

Program Office(s) Involved
Eastern Audit Division
Boston, Massachusetts

Region 1

Office of Environmental Stewardship

-------
®/l   OFFICE OF  INSPECTOR  GENERAL
         REPORT OF AUDIT
  MEMORANDUM

  SUBJECT:   Report of Validation of Air Enforcement Data Reported to
             EPA by Massachusetts
             Audit Report No. E1KAD7-01-0017-7100305

  FROM:      Paul D. McKechnie
             Divisional Inspector General for Audit
             Eastern Audit Division

  TO:         John P. DeVillars
             Regional Administrator
             Region 1
       Attached is our audit report on Validation of Air Enforcement Data Reported to EPA by
 Massachusetts. The overall objectives of this audit were to determine whether the Massachusetts
 Department of Environmental Protection (MADEP): (1) identified significant violators in
 accordance with EPA's Timely and Appropriate Enforcement Policy; (2) reported significant
 violators to EPA; and (3) performed inspections that were sufficient to determine if a facility
 violated the Clean Air Act (CAA). This report contains findings and recommendations that are
 important to both EPA and MADEP.

       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. 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 contained in this audit report do not necessarily represent the final EPA position, and are

-------
®/l   OFFICE OF INSPECTOR GENERAL
        REPORT OF AUDIT
 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.

 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 Linda Fuller, Team
 Leader, at (617) 565-3160.

 Attachment

 cc:   G. Mollineaux, R-l, Audit Coordinator

-------
®/l   OFFICE OF  INSPECTOR  GENERAL
         REPORT OF AUDIT
                 EXECUTIVE SUMMARY
  PURPOSE


  While states and local governments have primary responsibility for compliance and enforcement
  actions within delegated or approved states, EPA retains responsibility for ensuring fair and
  effective enforcement of federal requirements, and a credible national deterrence to non-
  compliance.1 In order for EPA to ensure that states are effectively carrying out federal
  enforcement requirements, the Agency needs compliance and enforcement data, especially
  related to significant violators (SVs).  In its February 14, 1997 audit report, "Validation of Air
  Enforcement Data Reported to EPA by Pennsylvania," OIG's Mid-Atlantic Division (MAD)
  reported that the State of Pennsylvania did not report all significant violators to EPA. Because of
  the reporting weaknesses identified in the MAD audit,  OIG initiated this review to determine if
  other states across the nation were remiss in reporting data to EPA. Our audit objectives were to
  determine whether the Massachusetts Department of Environmental Protection (MADEP):

  •    identified significant violators in accordance with EPA's Timely and Appropriate
       Enforcement Policy;

  •    reported significant violators to EPA; and

  •    performed inspections that were sufficient to determine if a facility violated the Clean Air
       Act (CAA).
       1 June 26, 1984, Memorandum from EPA Deputy Administrator entitled, "Implementing
  the State/Federal Partnership in Enforcement: State/Federal Enforcement Agreements."

                                      i                       Report No. 7100305

-------
®/l    OFFICE  OF INSPECTOR  GENERAL
          REPORT  OF AUDIT
  RESULTS IN BRIEF

  Region 1, also known as EPA New England,  awarded a pilot demonstration grant to MADEP
  covering Fiscal Years (FYs) 1995 and 1996. The pilot program allowed MADEP to test a
  multimedia approach to environmental protection and greater flexibility in using resources.  As a
  result, Region 1 allowed deviations from standard air program procedures. For example, routine
  regional/state meetings to discuss SVs were no longer required in the grant agreement; MADEP
  was allowed to test an inspection targeting plan which reduced the number of air major sources
  to be inspected; and MADEP was allowed to test a new inspection protocol rather than use EPA
  Level 2 inspection requirements. Our review showed that Region 1 and MADEP have much to
  learn from the pilot and need to make adjustments to future grant agreements to assure that
  EPA's program expectations are met.

  When planning future grant activity,  Region 1 should refer to the Assistant Administrator's
  February 21, 1996 memorandum, "Core EPA Enforcement  and Compliance Assurance
  Functions." This memorandum incorporated lessons learned from some of the Performance
  Partnership discussions which had taken place. It was prepared with the intention to guide EPA
  regional offices in their discussions with states regarding EPA's essential responsibilities for
  ensuring compliance with environmental standards through the use of enforcement and
  compliance assistance tools. By carrying out the core functions outlined, regions secure the
  protections of public health and the environment and the assurance that those regulated entities
  who violate environmental requirements do not gain a competitive advantage over those who
  comply with environmental laws. In addition to reexamining the success of innovative
  approaches, Region 1 needs to assure that MADEP carries out its grant agreement commitments.

  The following findings present areas which Region  1 and MADEP need to continue to work
  together to assure that EPA receives all the information needed for carrying out national
  objectives.

  MADEP Needs to Identify Significant Violators

  MADEP did not identify and report any SVs in FY 1996 even though several SVs existed.
  Region 1's elimination of routine SV discussions with the state and MADEP's misinterpretation
  of EPA's Timely and Appropriate policy contributed to MADEP not identifying SVs. As part of
                                        11                         Report No. 7100305

-------
®/l    OFFICE OF  INSPECTOR  GENERAL
          REPORT OF  AUDIT
  a demonstration grant, Region 1 also allowed MADEP to reduce its inspections of air major
  sources which reduced the universe of potential SV sources.  As a result, Region 1 was not
  advised of serious violations and unable to assure that appropriate enforcement action was taken.
  Additionally, MADEP did not document the basis for why penalties were not assessed against
  the facilities we believed were significant violators.

  Region 1 and MADEP Need to Resolve Database Discrepancies

  MADEP under reported the number of enforcement actions in EPA's Air Facility Subsystem
  (AFS) database for FY 1996 and did not enter any compliance inspection and enforcement data.
  In addition, we found database discrepancies between the MADEP databases and Region 1's
  AFS. MADEP did not comply with its special grant condition to update AFS on a quarterly
  basis. The untimeliness of MADEP data input and the incompatibility of MADEP and EPA
  systems contributed to the problem. As a result, EPA did not have a clear picture of state
  accomplishments and was forced to use additional resources to correct the problem.
  Region 1 Needs to Evaluate FIRST Inspection Protocol

  Region 1 needs to conduct its own evaluation of MADEP's use of the Facility-wide Inspection to
  Reduce the Source of Toxics (FIRST) protocol to assure that such inspections were adequately
  performed to determine a facility's compliance with state and federal regulations. Region 1 and
  MADEP developed the FIRST protocol as procedural guidance for use during multimedia
  inspections. While MADEP provided an evaluation of its use of the FIRST protocol, this
  evaluation's conclusions were not definitive. In its evaluation, MADEP characterized its data as
  85 percent accurate and stated that information obtained from staff interviews must be qualified
  because some staff were ambivalent towards using the multimedia approach. Also, MADEP
  claimed in its report that a single inspector was performing the inspections when in fact staffing
  varied. FIRST protocol inspections  did not include all minimum requirements of a Level 2
  inspection even though Region 1's State Compliance and Enforcement Coordinator said the
  inspections were to be equivalent to  a Level 2 inspection. Additionally, Region 1 needs to
  encourage MADEP to develop a structured training program for this new inspection approach.
  MADEP did not have training criteria, individual inspector training records, or a data tracking
  system. We believe a more structured training program would assist the state to effectively and
                                         111                         Report No. 7100305

-------
®/l    OFFICE  OF INSPECTOR GENERAL
          REPORT  OF AUDIT
  consistently perform multimedia inspections.
  RECOMMENDATIONS

  We have made a number of recommendations to the Regional Administrator to improve the
  operation of the program, some of which follow. (For more details, refer to the
  Recommendations at the end of Chapters 2, 3 and 4.)

  To improve MADEP's identification of SVs, we recommend that the Regional Administrator
  include in MADEP grants a special condition requiring regional/state monthly meetings to
  discuss SVs and other enforcement actions. We also recommend that Region  1 staff provide
  training and guidance to MADEP staff on identifying and reporting SVs. Region 1 should also
  negotiate with MADEP an increase in the number of air major sources to be inspected.

  To improve database reconciliation between Region 1 and MADEP, we recommend that the
  Regional  Administrator require MADEP to comply with the grant's reporting requirements such
  as entering on a quarterly basis into AFS compliance and enforcement as well  as penalty data.
  We also recommend that the Regional Administrator consider adjusting MADEP's grant award
  for noncompliance with grant conditions related to data reporting.

  To assure that MADEP effectively used the FIRST protocol, we recommend that the Regional
  Administrator instruct Region 1 staff to conduct its own evaluation and encourage MADEP to
  adopt a structured training program to ensure all inspectors are adequately trained to perform
  multimedia inspections.
  REGION 1's COMMENTS

  Overall, Region 1 agreed with most of our recommendations but disagreed on the presentation of
  certain conclusions. Their response along with the state's response has been summarized at the
  end of each finding. The complete Regional and state responses have been included as
  Appendices 2 and 3 respectively. An exit conference was held with representatives from Region
  1 and MADEP on September 24, 1997.
                                       IV                        Report No. 7100305

-------
®/l  OFFICE OF INSPECTOR GENERAL
      REPORT OF  AUDIT
            TABLE OF CONTENTS
                                              Page

 EXECUTIVE SUMMARY                                  i

 CHAPTER 1 - INTRODUCTION                               1

     PURPOSE                                       1
     BACKGROUND                                    1
     SCOPE AND METHODOLOGY                           5
     PRIOR AUDIT COVERAGE                             8

 CHAPTER 2 - MADEP NEEDS TO IDENTIFY SIGNIFICANT VIOLATORS      9

     SIGNIFICANT VIOLATORS NOT IDENTIFIED                 10
     SIGNIFICANT VIOLATOR COORDINATION MISSING            17
     PENALTIES NOT ASSESSED                            18
     INSPECTIONS OF MAJOR AIR SOURCES REDUCED             19
     CONCLUSION 	20
     REGIONAL RESPONSE                              21
     OIG EVALUATION                                 24
     MADEP RESPONSE                                 25
     OIG EVALUATION                                 25
     RECOMMENDATIONS                               26

 CHAPTER 3 - REGION 1 AND MADEP NEED TO RESOLVE
            DATABASE DISCREPANCIES                   27

     C&E DATA UNDER REPORTED AND UNTIMELY               27

                         V                Report No. 7100305

-------
®/l   OFFICE OF INSPECTOR GENERAL
       REPORT OF AUDIT
     UNDER REPORTING A CHRONIC PROBLEM                  29
     DATABASE DISCREPANCIES                            29
     CONCLUSION 	31
     REGIONAL RESPONSE                                31
     OIG EVALUATION                                   32
     MADEP RESPONSE                                   32
     OIG EVALUATION                                   33
     RECOMMENDATIONS                                34
 CHAPTER 4 - REGION 1 NEEDS TO EVALUATE FIRST PROTOCOL         35

     MADEP EVALUATION NOT CONCLUSIVE                    36
     INSPECTIONS NOT LEVEL 2 EQUIVALENT                   37
     FIRST PROTOCOL PILOT IDENTIFIED PROBLEMS              38
     INSPECTION STAFFING                               39
     MADEP NEEDS TO ESTABLISH A STRUCTURED
             TRAINING PROGRAM                         41
     CONCLUSION 	44
     REGIONAL RESPONSE                                44
     OIG EVALUATION                                   45
     MADEP RESPONSE                                   45
     OIG EVALUATION                                   46
     RECOMMENDATIONS                                 47

     APPENDIX 1: GLOSSARY OF ACRONYMS                     48
     APPENDIX 2: REGIONAL RESPONSE                       49
     APPENDIX 3: MADEP RESPONSE                          55
     APPENDIX 4: DISTRIBUTION                            64
                           VI                Report No. 7100305

-------
 ®/l   OFFICE OF  INSPECTOR  GENERAL
          REPORT  OF AUDIT
                           CHAPTER 1
                               Introduction
PURPOSE                  While states and local governments have primary
                           responsibility for compliance and enforcement actions within
                           delegated or approved states, EPA retains responsibility for
                           ensuring fair and effective enforcement of federal
                           requirements, and a credible national deterrence to non-
                           compliance.2  In order for EPA to ensure that states are
                           effectively carrying out federal enforcement requirements,
                           the Agency needs compliance and enforcement data,
                           especially related to SVs. In its February 14, 1997 audit
                           report, "Validation  of Air Enforcement Data Reported to EPA
                           by Pennsylvania,"  OIG's  Mid-Atlantic Division (MAD)
                           reported that the State of Pennsylvania did not report all
                           significant violators to EPA. Because of the reporting
                           weaknesses identified in the MAD audit, OIG initiated this
                           review to determine if other states across the nation were
                           remiss in reporting data to EPA.  Our audit objectives were
                           to determine whether the Massachusetts Department of
                           Environmental Protection (MADEP):

                                identified significant violators in accordance with
                                EPA's Timely and Appropriate Enforcement Policy;

                                reported significant violators to EPA; and

                                performed inspections that were sufficient to
        2 June 26, 1984, Memorandum from EPA Deputy Administrator entitled, "Implementing
   the State/Federal Partnership in Enforcement: State/Federal Enforcement Agreements."

                                     1                       Report No. 7100305

-------
 ®/l   OFFICE  OF  INSPECTOR GENERAL
          REPORT OF AUDIT
                                 determine if a facility violated the Clean Air Act (CAA).
BACKGROUND              The CAA of 1990 lists 188 toxic air pollutants that must be
                           reduced.  EPA estimated that more than 2.7 billion pounds
                           of toxic air pollutants are emitted annually in the United
                           States. The list of air toxics touched every major industry,
                           from the mining of base metals to the manufacture of high-
                           tech electronics. EPA studies  showed that exposure to
                           these air toxics may result in up to 3,000 cancer deaths
                           each year. Other adverse health effects of air toxics
                           included: respiratory illness; lung damage; premature aging
                           of lung tissue; as well as retardation and brain damage,
                           especially in children.

                           The CAA separately regulates six of the more serious air
                           pollutants - ground level ozone, particulate matter, carbon
                           monoxide, sulfur dioxide, lead, and nitrogen dioxide. These
                           six criteria pollutants are emitted in large quantities by a
                           variety of sources.  EPA sets national ambient air quality
                           standards for each of these criteria pollutants and the states
                           must take action to assure attainment with these national
                           standards.

                           Section 105 of the CAA provided the initial  authority for
                           federal grants to help states and local agencies administer
                           their air programs.  Before EPA awarded each grant, it
                           negotiated a work program with the state. The work
                           program contained specific work commitments the state
                           agreed to perform.  The work program encompassed
                           activities such as inspections, monitoring, permitting and
                           enforcement, which included identifying and reporting
                           significant violators.

                           The MADEP conducted inspections of major facilities to
                           ensure they met federal and state  regulations. To assess

                                      2                       Report No. 7100305

-------
®/l   OFFICE OF INSPECTOR  GENERAL
         REPORT OF AUDIT
                          compliance during an inspection, the inspector would need
                          to refer to the facility's permit. The permit translated
                          requirements of laws such as the CAA into individualized
                          enforceable requirements.

                          According to EPA policy, states can perform five different
                          levels of inspections at air pollution facilities. To adequately
                          evaluate a facility's compliance with the CAA,  EPA
                          considered a Level 2 inspection the most appropriate. The
                          Level 2 inspection included reviewing facility records to
                          determine compliance with applicable regulations, taking
                          and analyzing samples when appropriate, recording process
                          rates and control equipment parameters, and performing
                          visual observations of emissions.

                          EPA provided general guidance for conducting Level 2
                          inspections. However, MADEP and Region 1 developed an
                          inspection protocol different from the EPA Level 2
                          inspection.  The inspection protocol, known as the FIRST
                          protocol, was intended as a reference or guidance outlining
                          the minimum elements of an annual compliance evaluation
                          inspection for approximately 1,000 industrial major and
                          minor facilities.

                          Traditionally, the guidance that accompanied federal grant
                          funds required MADEP to target most of its industrial
                          inspections at the largest sources of pollution or "major"
                          sources. In recent years, through grant negotiations,
                          MADEP has increasingly used what it considered innovative
                          schemes for targeting inspections. This practice gave less
                          consideration to the targeting of strictly major facilities.

                          MADEP policy required the issuance of a Notice of
                          Noncompliance  (NON), when an inspector identified a
                                                            Report No. 7100305

-------
®/l   OFFICE  OF INSPECTOR  GENERAL
         REPORT  OF  AUDIT
                           violation. An NON specified the type of violation and the
                           regulation the facility violated. It may also require the facility
                           to show the actions to be taken to achieve compliance.  If
                           the violation met EPA's definition of a significant violator,
                           EPA policy required the state to report the facility for
                           placement on EPA's significant violator list. Before FY 1995,
                           Section 105 grants required MADEP to identify and report
                           significant violators to EPA. However,  starting in FY 1995,
                           air program compliance and enforcement activities were
                           transferred to the Massachusetts Compliance Assurance
                           Demonstration Grant.  While criteria for reporting significant
                           violators was not defined in the grant, EPA required the state
                           to follow EPA's February 7, 1992 "Issuance of Guidance on
                           the Timely and Appropriate Enforcement Response to
                           Significant Air Pollution Violators."

                           According to EPA's Timely and Appropriate Enforcement
                           Policy, a significant violator is any major stationary source of
                           air pollution, which violated a federally-enforceable
                           regulation.  This policy required states  to report significant
                           violators to EPA within one month of the violation, and to
                           maintain the facility on EPA's list until it achieved
                           compliance.  After the violation was reported, the state and
                           EPA should monitor the source until it achieves compliance.
                           This included determining an appropriate time schedule for
                           achieving compliance and assessing a penalty, if necessary.

                           During Federal  Fiscal Years (FFYs) 1995 and 1996,
                           MADEP Air program compliance and enforcement activities
                           were funded under the Compliance Assurance
                           Demonstration Grant.  This grant served as the forerunner of
                           the performance partnership grant and agreement currently
                           in place. The Demonstration Grant was for a two year
                           period, October 1, 1994 through September 30, 1996. The
                           total amount of grant funds provided as of September 30,
                           1996 was $2,823,743; federal share $2,112,300 and state
                                                             Report No. 7100305

-------
®/l   OFFICE OF  INSPECTOR GENERAL
         REPORT OF AUDIT
                          share $711,443.

                          The Compliance Assurance Demonstration Grant tested
                          several aspects of the state-EPA relationship, and innovative
                          ways of providing environmental protection.  Some of the
                          primary activities tested were multimedia inspections,
                          flexible targeting of industrial sources and building an
                          innovative electronic data system to improve multimedia
                          facility compliance. While the grant did not contain
                          language regarding the reporting of significant violators,
                          separate correspondence from MADEP stated
                          communication between EPA and MADEP regarding
                          violators would continue under the 1996 Demonstration
                          Grant.

                          Each month EPA and the states are responsible for updating
                          the air enforcement data on the Agency's database known
                          as the Aerometric  Information and Retrieval System (AIRS).
                          The AIRS Facility Subsystem (AFS) is part of the AIRS
                          database, containing compliance and enforcement data on
                          sources.  New violations are to be reported to EPA via
                          telephone and AIRS. EPA is to use this communication to
                          promote a greater degree of teamwork between themselves
                          and the states. However, if EPA is dissatisfied with a state's
                          enforcement action, EPA has the authority to override the
                          state and assume  the lead in resolving the violation.

                          MADEP is an agency located in the Massachusetts Office of
                          Environmental Affairs, and is divided into several functional
                          offices and bureaus. MADEP is divided organizationally into
                          five major offices, a Boston headquarters and four regional
                          offices. Boston is generally responsible for writing
                          regulations and guidance; the regional offices are
                          responsible for operations. Staff in the regional offices were
                          reorganized from a structure following the traditional
                          program areas to one following multimedia functional areas.
                                                            Report No. 7100305

-------
 ®/l   OFFICE OF  INSPECTOR GENERAL
          REPORT  OF AUDIT
                           During 1995 and 1996, a significant number of
                           Massachusetts air major sources converted to minor status.
                           However, EPA and state databases did not always reflect
                           these changes.  MADEP staff gave us information to present
                           a more accurate picture of the universe of air major sources
                           and activities performed by MADEP staff. After deleting
                           facilities which converted to minor status, we determined
                           that for FFY 1996, there were now 250 air major sources.
                           MADEP conducted 39 inspections at these major sources
                           and issued 32 NONs as a result.
SCOPE AND METHODOLOGY  We performed this audit according to the 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.

                           To accomplish our objectives we performed reviews and
                           conducted interviews at MADEP regional offices and its
                           central office in Boston. We visited three of MADEP's four
                           regional offices. While at the MADEP regional offices, we
                           interviewed the Bureau of Waste Prevention Deputy
                           Directors, the Compliance and Enforcement Chiefs, Permit
                           Chiefs, and Senior Regional Counsel. We interviewed
                           Central Office staff as well.

                           At EPA Region 1, we interviewed staff from the Office  of
                           Environmental Stewardship specifically in the
                           Air/Pesticides/Toxics section.
                           We reviewed the CAA, EPA's February 7, 1992 "Issuance of
                           Guidance on the Timely and Appropriate Enforcement
                           Response to Significant Air Pollution Violators," the June


                                     6                       Report No. 7100305

-------
®/l   OFFICE OF INSPECTOR GENERAL
         REPORT OF  AUDIT
                          14,1994 "Clarification Package for Guidance...."  EPA's
                          "Compliance/Enforcement Guidance Manual (Revised
                          1987)," Chapters, MADEP's April 1997, "Evaluation of
                          Compliance Assurance Demonstration Grant" and the
                          September 15,1986 "Comprehensive Enforcement Policies
                          and Guidance." We also reviewed the FFY 1996 Section
                          105 grants and the Compliance Assurance Demonstration
                          grant awarded to the state.  During this audit we used
                          various printouts from EPA's AIRS to obtain information on
                          the number and names of major sources for FFY 1996  and
                          what inspections were performed. We also used MADEP
                          generated reports to determine the inspections performed
                          and enforcement actions undertaken.

                          To evaluate MADEP's enforcement of the CAA
                          requirements, we reviewed the air quality files maintained at
                          MADEP offices.  These files contained items such as
                          inspection reports,  NONs, consent decrees, permits, test
                          results, emissions data and correspondence.  Due to the
                          complexity of air enforcement files, we received technical
                          assistance from the OIG's Mid-Atlantic technical staff and
                          Region 1's Air/Pesticides/Toxics' staff.

                          We performed two  analyses to accomplish our objectives.
                          First we examined AIRs and MADEP data for major facility
                          inspections performed in FFY1996. We were aware that
                          FFY 1996 was a transition year for the permitting of facilities.
                          Specifically, a significant number of major source facilities
                          submitted applications to MADEP which would affect their
                          emissions status and  result in the conversion of the facility
                          from a major to a minor source.  We obtained information
                          showing which major sources submitted applications to
                          convert their emission status from a major to a minor source.
                          We judgmentally selected all major facilities with 1996
                          inspections but excluded those with a 1996 approval for a
                          permit revision to a restricted or synthetic minor operating


                                     7                       Report No. 7100305

-------
®/l   OFFICE OF  INSPECTOR  GENERAL
         REPORT  OF AUDIT
                          status. Our universe for review included those facilities that
                          had inspections in 1996 and a NON issued by MADEP. In
                          some instances we also selected a facility that did not have
                          an NON issued.

                          To evaluate the adequacy of inspection reports we obtained
                          technical assistance reviews from Region 1 and 3 staff
                          associated with the Air program. To evaluate the adequacy
                          of inspector training, we interviewed MADEP and Region 1
                          staff.

                          Our audit disclosed several areas needing improvement that
                          are discussed in Chapters Two to Four. Our
                          recommendations address the need to report significant
                          violators and  improve the quality of inspections performed.
                          Action must be taken to ensure that MADEP  reconciles its
                          database with Region 1 and provides complete reporting
                          data as required in its grant agreement. Additionally, Region
                          1 needs to conduct its own evaluation of MADEP's use of
                          the FIRST protocol and encourage MADEP to establish a
                          structured training program for FIRST inspections.

                          We reviewed management controls and procedures
                          specifically related to our objectives.  However, we did not
                          review the internal controls associated with the input and
                          processing of information into AIRS or other automated
                          records system.

                          As part of this audit we also  reviewed the Region 1 FFY
                          1996 Assurance Letter prepared to comply with the Federal
                          Manager's Financial Integrity Act (FMFIA). We found that
                          none of the weaknesses cited during our audit were
                          disclosed in Region 1's annual report.

                          Our survey began on January 24, 1997. As a result of the
                          survey, we performed additional audit work from June 9,
                                                           Report No. 7100305

-------
 ®/l   OFFICE OF INSPECTOR GENERAL
         REPORT  OF AUDIT
                         1997 to July 31, 1997.

                         We issued a draft report on August 14, 1997. Region 1
                         submitted its response to us on September 22, 1997
                         (Appendix 2). We also included MADEP's
                         response(Appendix 3) to the Region. We have made
                         revisions to the report, where appropriate, to reflect the
                         information provided us in the Region's response.  We
                         provide a synopsis of the Regional and state comments and
                         our evaluation at the end of each finding chapter.
PRIOR AUDIT COVERAGE    This was EAD's first review of validation of air enforcement
                        data. Massachusetts was the only state in New England
                        selected for review.  OIG's MAD reviewed the adequacy of
                        Pennsylvania's identification and reporting of SVs and
                        issued its February 14, 1997 audit report, "Validation of Air
                        Enforcement Data Reported to EPA by Pennsylvania"
                        (E1KAF6-03-0082-7100115).
                                                       Report No. 7100305

-------
®/l   OFFICE OF INSPECTOR GENERAL
        REPORT OF AUDIT
                         CHAPTER 2
             MADEP Needs to Identify Significant Violators
                         MADEP did not identify and report any "Significant Violators"
                         (SVs) in FY 1996 even though several SVs existed. The
                         three sources listed in EPA's database as Massachusetts
                         SVs for that year were identified by the EPA Region 1 staff,
                         not MADEP staff. We identified an additional three SVs
                         from a sample of seven sources. Region 1's elimination of
                         routine SV discussions with the state and MADEP's
                         misinterpretation of EPA's Timely and Appropriate policy
                         contributed to MADEP not identifying SVs. As part of a
                         demonstration grant, Region 1 allowed MADEP to reduce its
                         inspections of air major sources which in turn reduced the
                         universe of potential SV sources. As a result, Region 1 was
                         not advised of serious violations and unable to assure that
                         appropriate enforcement action was taken. For the three
                         SVs we identified, penalties were not assessed for two
                         cases; a penalty was assessed for the third case but only
                         after the facility repeatedly violated its opacity limits.
                         (Opacity is the degree to which emissions reduce the
                         transmission of light and obscure the view of an object in the
                         background.)

                         The number of SVs identified by MADEP staff has steadily
                         declined since 1994. We believe the decline was due in part
                         to Region 1's elimination of routine SV discussions and
                         MADEP's decision to stop entering data into EPA's AFS
                         (See Chapter 3). According to the Region 1 Air Coordinator,
                         MADEP identified SVs as shown:
                                  10                     Report No. 7100305

-------
®/l   OFFICE  OF INSPECTOR GENERAL
        REPORT OF AUDIT
Fiscal Year
1994
1995
1996
SVs Identified
by MADEP
14
2
0
                        Identification of SVs to EPA is important to assure that
                        regional personnel are aware of violations and concur with
                        state enforcement action taken since the region can take
                        action independently of the state. EPA's February 7, 1992,
                        "Issuance of Guidance on the Timely and Appropriate
                        Enforcement Response to Significant Air Pollution Violators"
                        (hereafter referred to as the Timely and Appropriate policy)
                        provided that:

                             The Clean Air Act vests responsibility for enforcement
                             of the law in EPA.  Therefore, EPA may move
                             independently with respect to designation of a violator
                             as a "Significant Violator" and EPA shall assume the
                             lead in cases when it becomes apparent that the
                             State is unable or unwilling to act in accordance with
                             this guidance to resolve a violation in a timely and
                             appropriate manner.

                        Additionally, the SV data must be accurately maintained to

                                  11                     Report No. 7100305

-------
 ®/l   OFFICE OF INSPECTOR GENERAL
          REPORT OF AUDIT
                           ensure that this data, which is shared by other enforcement
                           offices within EPA and the states, correctly reflects the SV
                           status for all sources subject to EPA's policy. This data field
                           is becoming increasingly more important as the Agency
                           shifts further toward multimedia, geographic and industry
                           specific enforcement.
Significant Violators Not      MADEP did not identify any SVs during FY 1996. The three
Identified                   SVs in EPA's 1996 database were entered by EPA Region
                           1's State Compliance and Enforcement (C&E) Coordinator
                           after he reviewed a MADEP enforcement report.  Our review
                           of seven NONs found that three included violations which
                           should have been reported as SVs to Region 1.  Our seven
                           cases represented half the NONs issued in 1996 which had
                           potential to include significant violations. Only 14 of the 32
                           NONs issued to air major sources potentially included
                           significant violations.  The other 18 were for not submitting
                           operating permit applications (which was not considered a
                           significant violation by EPA for that period).

                           Controls were established to assist MADEP in identifying
                           SVs. MADEP created a checklist to aid  the inspector in
                           identifying an SV. Also, the Region 1 State C&E
                           Coordinator was available to discuss whether violations
                           warranted an SV designation. However, we found no
                           evidence of the checklist in the files and MADEP staff did
                           not request Region 1's technical assistance.  Based on the
                           above, we concluded that MADEP did not use the controls in
                           place to identify and report SVs to Region 1.

                           Even though the MADEP Commissioner stated that MADEP
                           staff have "definitional" differences with EPA's SV policy,
                           MADEP staff used EPA's Timely and Appropriate policy
                           when determining a violator's SV status.
                                     12                      ReportNo. 7100305

-------
®/l    OFFICE OF INSPECTOR GENERAL
         REPORT OF  AUDIT
                         We reviewed 13 case files administered by three of the four
                         MADEP regional offices:
Regional
Offices
Northeast
Southeast
Central
Number of
Files Reviewed
5
6
2
                         The 13 sources were classified in either the Air Facility
                         Subsystem (AFS) or state databases as A1-Majors.
                         However, five of the sources had applied and were approved
                         as synthetic minors, and one source ceased operations and
                         closed the facility. Of the seven remaining major sources,
                         three had violations which warranted elevation to SV status.

                         Based on our file reviews and discussions with MADEP
                         regional staff, there was no evidence available to
                         demonstrate whether the sources were ever considered as
                         candidates for the SV list.  The MADEP Southeast Regional
                         Office (SERO)  provided a copy of a MADEP designed
                         checklist for identifying SVs, however, we found no evidence
                         in any of the files that the checklist was used. MADEP
                         Central Regional Office (CERO) staff stated that there were
                         several discussions concerning one of the sources we
                         identified as an  SV, but they had never discussed the case
                         with Region 1 technical staff.  This breakdown in
                         communication  and lack of documentation  not only affected
                         MADEP's ability to identify and record sources as SVs, but
                         also demonstrated MADEP's noncompliance with EPA's
                         Timely and Appropriate policy.

                         A synopsis of the three sources we determined were SVs
                         follows:
                                   13
Report No. 7100305

-------
®/l   OFFICE OF INSPECTOR  GENERAL
         REPORT  OF  AUDIT
                          Major Source #1

                          Major Source #1 chronically violated its opacity limits which
                          were part of the Massachusetts State Implementation Plan
                          (SIP). According to the EPA's Timely and Appropriate policy
                          a major source which violates a SIP emission is an SV.
                          During a March 12, 1996 inspection, a MADEP inspector
                          observed opacity of greater than 20 percent. The facility's
                          August 3, 1993 Plan Approval required zero percent opacity.
                          The inspector noted that MADEP had given interim approval
                          on February 23, 1996 to install  two thermal oxidizer units
                          (opacity controls) by mid-May.  As a result, no NON was
                          issued.

                          MADEP's Chief of Compliance and Enforcement (C&E)
                          concurred with the inspector's decision. On  May 23, 1996,
                          MADEP conducted a follow-up inspection and found that the
                          units were installed according to the interim approval and
                          were working correctly (zero percent opacity). Also, the
                          plant's neighbors were happy that the odors were gone.

                          However, on July 21, 1996, neighbors complained to their
                          Police Department that the plant was emitting smoke and
                          obnoxious fumes.  In a July 25, 1996  letter to the City's
                          Mayor, the City's Conservation Department summarized that
                          there had been many complaints received regarding the
                          plant. In September and October more complaints were
                          received from the neighborhood. On  October 11,  1996,
                          MADEP staff observed  blue smoke during a visible emission
                          observation. As a result, on October 22,  1996, MADEP
                          issued an NON for smoke opacity equal to 30 percent.

                          Complaints continued to be received by MADEP as of March
                          1997. This violation was not considered an SV according to
                          the C&E Chief because the October 1996 opacity violation
                          was considered a one time occurrence since the installation
                                    14                      ReportNo. 7100305

-------
®/l   OFFICE OF INSPECTOR GENERAL
         REPORT OF AUDIT
                          of the oxidizer units. He also stated the company showed a
                          good faith effort by working with MADEP to correct the
                          October violation.

                          In our opinion, this violation should have been identified as
                          an SV because of the plant's chronic opacity problem.
                          While we can accept MADEP's decision not to issue an
                          NON in March 1996, a violation did occur; therefore, the
                          October violation was not a first time occurrence.
                          Additionally, the numerous citizens' complaints over a
                          number of months led us to conclude that the violation cited
                          by MADEP in October 1996 was not a first time occurrence.
                          Also, a plant's willingness to work at correcting a violation
                          does not preclude it from being reported as an SV.

                          EPA's Office of Enforcement and Compliance Assurance
                          (OECA) provided further clarification on whether one opacity
                          violation constituted a significant violation as follows:

                               Opacity is a surrogate for particulate matter emissions
                               and is considered an emissions violation.
                               Accordingly, even a single opacity violation must be
                               identified. How it is then ranked and tracked is to be
                               determined by agreement of EPA and the State/local
                               authority.

                          Additionally:

                               The policy establishes a procedure and a mechanism
                               for differentiating between these two examples in
                               terms of the priority for action, but requires an
                               identification of the violation in each instance so the
                               agencies have an opportunity to review the relevant
                               facts and agree as to the priority for resolving the
                               violation.
                                    15                      Report No. 7100305

-------
®/l   OFFICE  OF  INSPECTOR GENERAL
         REPORT OF AUDIT
                         By not notifying Region 1 of this violation, MADEP prevented
                         an opportunity for it and Region 1 to review the case and
                         come to an agreement on resolving the violation.

                         Major Source #2

                         We believe Major Source #2 was an SV because it
                         exceeded its particulate matter standards which was a
                         violation of the New Source Performance Standards
                         (NSPS). MADEP staff reviewed results of stack tests
                         performed on October 4 and 5, 1995.  The test results
                         showed particulate emissions during the three compliance
                         runs were 0.054, 0.040 and 0.033 grains per dry standard
                         cubic feet of flue gas. In addition to exceeding the NSPS
                         standard,  the readings exceeded MADEP's permitted worst
                         case emission standard for particulate matter of 0.030 grains
                         per dry standard cubic foot as  contained in the Plan
                         Approval of April 11, 1994.  Based on this non-compliance,
                         MADEP staff requested the source to be re-tested for
                         particulate matter emissions. The November 30, 1995
                         results were 0.153, 0.166 and  0.176 grains per dry standard
                         cubic foot of flue gas, which still exceeded the maximum
                         allowable  emission rate.

                         On  December 14, 1995, MADEP issued an NON based on
                         the  second test readings. In the NON, MADEP noted the
                         following:

                              The compliance stack testing results revealed that
                              particulate emissions were greater than 0.040 grains
                              per dry standard cubic foot of flue gas, which is in
                              violation of the New Source Performance Standards
                              (NSPS) regulations for Hot Mix Asphalt Facilities
                              (Federal Register 40 CFR, Part 60, Subpart I).
                                   16                     Report No. 7100305

-------
®/l   OFFICE  OF  INSPECTOR GENERAL
         REPORT OF AUDIT
                         The MADEP staff found the source to be in compliance with
                         applicable emission limitations on February 9, 1996, after
                         the third compliance emission test report.

                         Until the source reached compliance in February, it should
                         have been listed as an SV because the violation issued by
                         MADEP staff met the following definition of a Significant
                         Violator:

                               1. A "Major" source and it violates any one or more of
                               the following:

                                    b.  NSPS emission, monitoring or substantial
                                    procedural requirements.

                         The SERO Deputy Regional Director concurred that the
                         violation should have been reported as an SV but was not
                         because the stack tester did not relay the results to the
                         appropriate staff who identify SVs. The SERO Deputy
                         Regional Director assured that corrective action had been
                         taken to prevent this from recurring.

                         Major Source #3

                         Major Source #3 chronically violated its opacity limits, a
                         violation not only of the SIP, but also of a MADEP
                         negotiated Consent Order.  MADEP issued an NON on June
                         26, 1996 which reported a history of visible emission
                         violations that dated back to August 12, 1991. MADEP staff
                         made observations over a four month period and recorded
                         opacity readings equal to and greater than 35 percent on
                         four of the six days readings were conducted. On the other
                         two days the opacity readings were greater than 20 and 30
                         percent. At the time this NON was issued, the source was
                         under a June 16, 1995 Administrative Consent Order for
                                   17                     Report No. 7100305

-------
®/l   OFFICE  OF  INSPECTOR GENERAL
         REPORT  OF AUDIT
                          visual emissions in excess of 20 percent opacity and odor
                          violations.

                          In the June 1996 NON, MADEP wrote that the source was in
                          violation of its consent order. The MADEP files for this
                          source contained evidence of numerous complaints. In a
                          December 17, 1996 letter, MADEP referred this case to the
                          state's Attorney General's Office for higher level
                          enforcement. However, MADEP did not report this case as
                          an SV to Region 1.  MADEP's Central Regional Office
                          (CERO) Deputy Director stated that the visual emission
                          readings were not conducted using EPA's Method 9. She
                          said in order to get the appropriate visual position, readings
                          would have to be conducted from a highway which would not
                          be safe for the inspector. Because Method 9 was not used,
                          MADEP believed the readings would be challenged and
                          would not be legally defensible at the federal level.

                          In regards to this question, EPA's OECA provided the
                          following:

                               Our response is that a violation should be listed
                               where the agency has a reasonable basis to believe
                               that a violation has occurred. Listing the violation is
                               not an adjudication and does not require proof
                               "beyond a reasonable doubt" or "by a preponderance
                               of the evidence." Indeed, one of the appropriate
                               responses to a listing as a SV is to conduct further
                               investigation.

                          OECA suggested that a state could make arrangements with
                          the state police to provide an adequate measure of safety on
                          the highway during inspections.

                          We concluded that the source should have been placed  on
                          the SV list since the violations met the Timely and


                                    18                      Report No. 7100305

-------
 ®/l    OFFICE OF INSPECTOR GENERAL
          REPORT OF  AUDIT
                          Appropriate policy SV definition:

                               Agencies shall deem a source to be an SV if it is a
                               major source and it violates the following:

                                          SIP emission, monitoring or substantial
                                          procedural requirements, regardless of
                                          pollutant designation status.

                                          SIP, NSPS or NESHAP emission,
                                          procedural or monitoring requirements
                                          violated repeatedly or chronically.
                                         Any substantive provision of a State
                                         Judicial Order or a State Administrative
                                         Order which was issued for an
                                         underlying SIP violation.
Significant Violator          In our opinion, the one overriding cause of MADEP's failure
Coordination Missing        to identify SVs was a breakdown in communication between
                          MADEP's regional compliance and enforcement staff, and
                          Region 1 air technical staff. Region 1's State C&E
                          Coordinator stated that in the past he directly communicated
                          on a regular basis with MADEP air compliance and
                          enforcement staff. This communication ceased under the
                          Mass Demonstration Grant because there was no longer a
                          requirement for MADEP and Region 1 to discuss SVs on a
                          monthly basis.

                          Prior CAA Section 105 grants provided that the state and
                          EPA would conduct monthly Compliance/Enforcement

                                   19                     Report No. 7100305

-------
 ®/l   OFFICE OF INSPECTOR GENERAL
          REPORT OF  AUDIT
                           discussions about current/potential SVs.  The FY 1996 Mass
                           Demonstration Grant deleted this reference.  According to a
                           draft "MA-DEP FFY96 Compliance Assurance
                           Demonstration Grant Response to 11/2/95 EPA Comments",
                           EPA commented in item #14, "Significant Violator
                           coordination is missing." MADEP responded, "As in FY95,
                           DEP will verbally communicate significant violator
                           information monthly to EPA." However, we found that
                           MADEP was not communicating to Region 1  on a monthly
                           basis.  Region 1's State C&E Coordinator advised that
                           MADEP did not call on a monthly basis but rather on an as
                           needed basis. MADEP's Associate Commissioner stated
                           that MADEP staff surveyed its actions monthly to identify
                           SVs but only called EPA when  needed to add/delete
                           information. If no action occurred, MADEP did  not call EPA.

                           This lack of communication between EPA and MADEP
                           contributed to MADEP's failure to identify SVs.  MADEP's
                           regional staff commented that additional guidance or
                           clarification on identifying SVs was needed.  EPA's State
                           C&E Coordinator stated that he could provide this guidance.
                           Additionally, since inspectors conducting multimedia
                           inspections have diverse technical backgrounds, EPA
                           technical staff can provide the air expertise which some
                           state inspectors may not possess. Direct and open
                           communication will resolve questions on guidance and
                           provide multimedia inspectors with a source for technical
                           expertise.
Penalties Not Assessed       MADEP did not assess penalties against Major Sources #1
                           and #2.  MADEP did not believe these violations
                           represented a significant potential harm to public health,
                           safety or the environment.  Major Source #3 had violated
                           opacity limits since 1993 before MADEP assessed a penalty.
                           Consent Orders and NONs had been issued from 1993 to


                                     20                      Report No. 7100305

-------
®/l   OFFICE OF INSPECTOR GENERAL
         REPORT  OF  AUDIT
                          1996. MADEP considered its actions to be a long term
                          enforcement strategy and believed the strategy achieved a
                          sustainable remedy for environmental problems at the plant.
                          For Major Sources #1 and #2, files showed no evidence that
                          MADEP considered whether a penalty should have been
                          sought or if there was any economic benefit to the facilities
                          for their noncompliance.  While a penalty was finally
                          assessed against Major Source #3, the time involved was
                          excessive in our opinion.

                          We bring this information  to the Region's attention because
                          in its January 27, 1994 Multi-Media Overview Report of
                          MADEP, the Region was concerned that MADEP was
                          relying excessively on the use of NONs. The report further
                          stated:

                               Yet, NONs are not  appropriate as the only
                               enforcement response to substantial violations.
                               Indeed, some types of violations deserve judicial or
                               administrative action, with penalties, as the first
                               enforcement intervention.  Such stronger actions
                               send a more powerful deterrence message to the
                               violator and the regulated community at large.
                               Moreover, collecting penalties that recoup the
                               economic benefit to the violator from its violations
                               ensures that all members of the regulated community
                               are treated equally under the law.  In other words,
                          entities that violate the law are prevented from gaining an
                          economic advantage over their law-abiding competitors.

                          In future discussions with MADEP, the Region should assure
                          that MADEP has considered stronger actions such as
                          penalties and properly documented basis why it did/did not
                          assess a penalty.


                                   21                      Report No. 7100305

-------
 ®/l   OFFICE OF INSPECTOR GENERAL
          REPORT OF AUDIT
Inspections of Major Air       Region 1 agreed to let MADEP try an innovative inspection
Sources Reduced            targeting plan under the FY 1996 Demonstration Grant.
                           However, this inspection plan reduced the number of
                           inspections of air major sources to a level which may affect
                           the state's ability to maintain the enforcement presence it
                           planned according to MADEP's January 29, 1996 letter to
                           Region 1. This reduction also limited the number of
                           potential SV cases which could be identified and reported.

                           In its January 29, 1996 grant application, the MADEP
                           Assistant Commissioner for the Bureau of Waste Prevention
                           wrote to Region 1, "DEP will increase targeting of smaller
                           sources who were less-frequently inspected under traditional
                           targeting approaches, while maintaining a deterrent
                           inspection and enforcement presence at larger, high
                           potential risk facilities."  Region 1 agreed to this innovative
                           inspection targeting approach under the FY 1996
                           Demonstration Grant by not requiring MADEP to conduct a
                           specific number of air major sources.

                           According to EPA's March 29, 1991 "Revised Compliance
                           Monitoring Strategy" (CMS),  "The goal of CMS is to develop
                           the most environmentally effective inspection program for
                           each State. To accomplish this goal, more open and
                           frequent planning and discussion between the State and
                           EPA is required, which will build a stronger State-Federal
                           partnership." Both Region 1 and MADEP believed the
                           targeting approach included  in the 1996 Demonstration
                           Grant was the most environmentally effective for
                           Massachusetts.

                           However, the CMS also states that the final Inspection Plan
                           "must explicitly include": 1) a list of sources to be inspected;
                           2) how the list of sources was determined; and 3) an
                           estimated resource allocation. The Region 1

                                     22                      Report No. 7100305

-------
®/l   OFFICE OF INSPECTOR  GENERAL
         REPORT OF AUDIT
                          Air/Pesticides/Toxics (APT) Chief said that Region 1
                          departed from the CMS process under the Performance
                          Partnership Grant (PPG) philosophy. Region 1 did not
                          require MADEP to provide as grant deliverables the three
                          elements described as part of an Inspection Plan. The 1996
                          grant included a description of the basis for selecting
                          sources for inspections. However, a list of sources to be
                          inspected, as well as a resource allocation plan, was not
                          submitted.

                          The APT Chief said that he would like to see all major
                          sources "touched" at least once during a four year period.
                          Depending on the database used, MADEP conducted from
                          39 to 54 inspections at air major sources. In either case,
                          MADEP will not meet the APT Chiefs suggested inspection
                          schedule. At the current rate, it is also doubtful that MADEP
                          could inspect all its air majors at least once every five years
                          as stipulated in EPA's March 1980 "Inspection Frequency
                          Guidance". In our opinion, this shortage in coverage will not
                          maintain the deterrent presence MADEP claimed it would
                          continue with its new inspection targeting plan.

                          Additionally, MADEP and Region 1 need to decide if less
                          frequent major source inspections are justified.  MADEP's
                          Deputy Assistant Commissioner stated that the inspections
                          of smaller sources had not detected the serious violations
                          anticipated.  The Deputy Assistant Commissioner also said
                          that the state was discussing the results and whether or not
                          to increase its inspections of major sources.  EPA's CMS
                          provides, "An analysis of each State's Inspection Plan
                          results will be conducted at the end of each year by the
                          Regional Office." Region 1's APT Environmental Protection
                          Specialist stated that although targeting of major inspections
                          had not increased for FY 1997, it would be discussed and


                                    23                       Report No.  7100305

-------
 ®/l   OFFICE OF INSPECTOR GENERAL
          REPORT OF  AUDIT
                           negotiated for FY 1998.  Together, Region 1 and MADEP
                           should evaluate and discuss results of past targeting plans
                           and make adjustments accordingly to the FY 1998
                           inspection targeting plan.
CONCLUSION
Region 1 and MADEP need to enhance their partnership
with greater communication.  SV identification is a joint
decision making process. In our opinion, by deleting the
requirement for routine SV discussions from the grant
agreement, the Region did not clarify its expectation that
such discussions were to continue. As a result, MADEP was
unable to identify any SVs on its own.  Discussions on SV
identification should also assist Region 1 and MADEP to
determine the adequacy of the enforcement action planned.
MADEP's limited use of penalties may have allowed
economic benefits to companies which polluted or provided
an inadequate deterrent to prevent prolonged pollution.
Region 1 and MADEP also need to further discuss the
results of their inspection targeting plans to assure that
adequate opportunities exist to identify significant violations.
Open and continuous dialogue will benefit both partners and
ensure the ultimate success of the partnership, a safe
environment.
REGIONAL RESPONSE
Region 1 generally agreed to implement our
recommendations related to SV identification. The Region
described a number of actions it was taking, such as
developing SV coordination procedures with MADEP and
providing SV identification training to MADEP staff.

The Region also noted that the demonstration grant
attempted to balance EPA's interests in media specific
expectations while providing MADEP enough flexibility to
                                     24
                                 Report No. 7100305

-------
®/l   OFFICE OF INSPECTOR GENERAL
         REPORT OF  AUDIT
                          pilot its approach. However, different expectations evolved:

                               The IG audit has pointed to the identification and
                               communication of CAA Significant Violators as an
                               area where EPA and MADEP diverged on media
                               specific expectations.  This was further exacerbated
                               by the absence of a clear understanding of how core
                               program expectations should be addressed in an
                               experimental demonstration grant.
                          The Region further responded:

                               The audit report implies that the region allowed
                               improper CAA procedural departures. For example,
                               we no longer required SV meetings as a grant
                               requirement.  First, because we no longer required
                               SV meetings in the grant does not mean we
                               abandoned the notion that these were an expected
                               practice. In the spirit of performance partnership, the
                               region has attempted to move beyond "dollars for
                               widgits" as the basis of its relationship with the state
                               and do not include all of our expectations as grant
                               requirements. Secondly, during this time period, EPA
                               and Massachusetts air personnel were meeting
                               regularly with representatives from the Attorney
                               General's Office along with EPA legal staff to discuss
                               significant CAA violators. In fact the level of
                               participation at these meetings far exceeded what
                               occurs in most other state enforcement discussions.
                               Where this process fell short was not capturing the
                               universe of CAA violations for discussions. In
                               addition, it was difficult to capture that universe of
                               CAA violations, because MADEP had invested in
                               FIRST related coordination/communication in lieu of
                                    25                       Report No. 7100305

-------
®/l   OFFICE  OF  INSPECTOR GENERAL
         REPORT  OF AUDIT
                               media specific coordination/communication.
                               Communication efforts were further hampered by the
                               existence of four distinct DEP regions with no clear
                               mechanism for collecting media specific information.

                          Concerning MADEP's penalty assessment practices, the
                          Region stated:

                               The IG audit raised concerns over MADEP's
                               enforcement approach with regard to economic
                               benefits.  EPA New England has a fundamental
                               expectation that state enforcement programs will
                               neutralize economic benefit from noncompliance. It is
                               not clear from the case files cited that MADEP has an
                               endemic problem with economic benefits although we
                               agree with the audit finding that EPA's response
                               would likely have been different (at least with regard
                               to gravity based penalty) for cases reviewed. We
                               believe that closer communications between MADEP
                               and EPA on all media specific enforcement matters
                               will address the enforcement issues discussed in the
                               audit.

                          During our exit conference, the Region stated that it was not
                          clear that the facilities cited in our report received an
                          economic benefit from their violations. However, the Region
                          agreed that MADEP should document the basis for not only
                          instances when a penalty was assessed but also for when it
                          is not assessed.

                          Finally on the issue of reduced  inspections of air major
                          sources, the Region wrote:

                               The partial disinvestment in targeting CAA majors
                               cited in the audit was not an  improper departure from
                               CAA procedures but rather a strategic decision fully


                                   26                      Report No. 7100305

-------
 ®/l   OFFICE OF  INSPECTOR GENERAL
          REPORT  OF AUDIT
                                allowed for under the CAA Compliance Monitoring
                                Strategy (CMS). At the time, there was general
                                consensus at EPA New England and its state air
                                programs that we were overinvesting resources in
                                major source compliance monitoring. In the spirit of
                                the Demonstration Grant, we agreed to depart from
                                the traditional inspection expectation (not
                                requirement) for major sources.  As implementation
                                progressed, we advised MADEP that there was too
                                large a disinvestment  in major sources (even though
                                we supported the strategy of investing inspection
                                resources more broadly than the major expectation).

                                In fact there is currently programmatic
                                acknowledgment within EPA that all media CMSs
                                may now be outdated  and require revisitation.  This
                                merely underscores the validity of entertaining
                                forward looking alternatives to historical compliance
                                monitoring expectations. There is no current,
                                universally held expectation on what the right "mix" of
                                sources to be inspected is.
OIG EVALUATION            The Region has taken positive actions to carry out our SV
                           identification and reporting recommendations.  However, we
                           do continue to recommend that SV discussions be held
                           within a specific period of time, such as monthly.

                           We disagree that our report "implies" the Region allowed
                           "improper" CAA procedural departures. We stated that the
                           elimination of SV meetings was one of the causes why
                           MADEP did not identify SVs. We never cited this activity as


                                    27                      Report No. 7100305

-------
 ®/l   OFFICE OF INSPECTOR GENERAL
          REPORT OF  AUDIT
                           a CAA requirement.  We did point out, however, that prior air
                           media specific grants provided for monthly SV discussions.
                           We also pointed out that the decline in MADEP's
                           identification of SVs coincided with the elimination
                           of this special condition of prior grants.  We believed it was
                           an effective procedure and thus recommended its
                           reinstatement.

                           Additionally, we also reported that the lack of communication
                           on SVs was missing between MADEP's regional compliance
                           and enforcement staff, and Region 1's air technical staff.
                           While Region 1 staff may have had several meetings with
                           the Attorney General's Office and other state staff, obviously
                           these meetings were not about the identification of SVs;
                           otherwise, the state would have reported SVs.

                           Based upon further discussion of the penalty assessment
                           issue during our exit conference, we revised this section of
                           the report. We agreed that the state needs to document its
                           penalty decisions, even when penalties are not assessed.

                           Finally, we concur with Region 1's plan to increase the
                           number of major sources to be inspected. We recognize
                           that in the Demonstration Grant, Region 1 agreed to let
                           MADEP try an innovative inspection targeting plan because
                           both parties believed the approach was the most
                           environmentally effective for Massachusetts in accordance
                           with the CMS. We did not report Region 1's approval of
                           MADEP's targeting plan as an "improper departure from
                           CAA procedures," but rather reported on this change
                           because  it affected the opportunities MADEP had to identify
                           air major sources which were SVs.
MADEP RESPONSE          MADEP agreed that it can improve its reporting of SVs to
                           EPA and that this effort was underway.  Additionally,


                                     28                      Report No. 7100305

-------
 ®/l   OFFICE OF INSPECTOR GENERAL
          REPORT OF  AUDIT
                           MADEP commented that many states and OECA have
                           debated EPA's definition of the air program's significant
                           violator. MADEP believed the OIG misrepresented the SV
                           identification problem. It stated that 32 files were examined
                           and 29 did not contain SV reporting problems. MADEP also
                           believed that the OIG misunderstood its Administrative
                           Penalty Statute in concluding that violations were not a first
                           time occurrence and penalties should have been issued
                           against Major Source #1.

                           MADEP stated, "Now that the demonstration period is
                           concluded, DEP plans to inspect at least 1/5 of the universe
                           of air 'majors' during FY98."
OIG EVALUATION            We are pleased that MADEP agreed to improve its reporting
                           of SVs to EPA.  While debate may be ongoing regarding the
                           appropriate definition of significant violators, MADEP and
                           other states have a responsibility to carry out the program
                           activities as currently defined. MADEP was aware of this
                           fact as evidenced by an earlier statement that even though it
                           did not agree with EPA's SV definition, it did use it as
                           criteria.

                           MADEP was not correct in stating that the OIG examined 32
                           files and 29 did not contain SV reporting problems. As
                           previously explained (See page 11), OIG reviewed seven
                           files from a universe of 14 which had potential to contain an
                           SV.

                           As already described in our finding, we continue to conclude
                           that more than one violation occurred at Major Source #1.
                           Regarding the appropriateness of a penalty assessment, we
                           reported that MADEP's files did not document whether a
                           penalty should have been sought or if there was any
                           economic benefit to the facility for its noncompliance.

                                     29                      Report No. 7100305

-------
 ®/l    OFFICE OF INSPECTOR GENERAL
          REPORT OF  AUDIT
                          We concur with MADEP's response to inspect at least 1/5 of
                          the air major facilities.  This will expand MADEP's
                          opportunities to discover significant violators.
RECOMMENDATIONS        We recommend that the Regional Administrator require his
                          staff to:

                          1.    Amend the current grant and include in future grants,
                               a special condition for monthly regional/state
                               meetings to discuss potential SVs and other
                               enforcement actions.

                          2.    Instruct MADEP to provide your staff with copies of
                               issued NONs to assist in discussions to determine
                               when a violating source should be placed on the
                               "Significant Violator" list.

                          3.    Provide MADEP staff with guidance and training on
                               how to designate and report violating sources as
                               "Significant Violator" under the air program.

                          4.    Instruct MADEP to document the files of major
                               sources showing that consideration was given to
                               elevating the violation to significant status and a
                               reason provided for the  decision.

                          5.    Negotiate with MADEP an increase in the number of
                               air major sources to be inspected.

                          6.    Instruct MADEP to document basis for why it did/did
                               not assess penalties against SVs.
                                   30                     ReportNo. 7100305

-------
 ®/l   OFFICE OF  INSPECTOR  GENERAL
         REPORT OF AUDIT
                         CHAPTER 3
                 Region 1 and MADEP Need to Resolve
                       Database Discrepancies
                         MADEP under reported the number of enforcement actions
                         and did not enter any compliance inspection and
                         enforcement (C&E) data in the AFS in FY 1996. In addition,
                         we found database discrepancies between the MADEP
                         databases and Region 1's AFS.  The untimeliness of
                         MADEP data input and the incompatibility of MADEP and
                         EPA systems contributed to this problem. As a result, EPA
                         did not have a clear picture of state accomplishments and
                         was forced to use additional resources to correct the
                         problem.

                         The FY 1996 Demonstration Grant stated:

                              DEP will report compliance and enforcement data
                              semiannually from FMF incorporating MOS, and will
                              perform data entry quarterly  into SSEIS for upload to
                              the federal AFS . . . (emphasis added)
C&E Data Under Reported     Approximately one-half (40) of the NONs issued to major
and Untimely               sources were not entered into AFS until six months after the
                         fiscal year end. On October 12, 1996, MADEP provided a
                         disk to Region 1 containing a half year's worth of C&E data
                         from its Stationary Source Emission Inventory System
                         (SSEIS) database. MADEP did not update the C&E data in
                         AFS until March 29, 1997. MADEP maintained two air
                         program databases. The SSEIS database was the original


                                  31                    Report No. 7100305

-------
®/l    OFFICE OF INSPECTOR  GENERAL
         REPORT OF  AUDIT
                         database used by MADEP for AIRS (C&E) data. The
                         MADEP also maintained multimedia C&E data in its Facility
                         Master File (FMF) database. MADEP provided semi-annual
                         paper reports containing C&E data to EPA from the FMF
                         database.  However, these paper reports were not a
                         substitute for entering data into AIRS. The SSEIS database
                         was compatible with the AFS; however, the FMF was not

                         compatible with either SSEIS or AFS. Data could be
                         transferred from SSEIS to update AFS.

                         In late spring 1995,  a MADEP Assistant Commissioner
                         instructed the MADEP inspectors to stop entering data into
                         SSEIS and instead  to enter it only into FMF. MADEP staff
                         wanted to avoid redundant data entering into two state
                         databases. In order to update AFS, MADEP staff in the
                         Boston Office manually entered data from FMF into SSEIS.

                         MADEP provided Region 1 a SSEIS disk on October 12,
                         1996 which was supposed to contain FFY 1996 C&E data.
                         Region 1 staff found that the diskette contained only half of
                         the FY 1996 C&E data and notified MADEP of this under
                         reporting.  In late December 1996 or early January 1997,
                         Region 1 staff contacted MADEP advising that the National
                         AFS Database needed to be updated since OECA would be
                         extracting 1996 C&E data by the middle of January. In order
                         to update AFS,  Region 1 staff requested and MADEP
                         provided a diskette  in ASCII format containing  C&E data
                         from its FMF database. Since the FMF and AFS systems
                         were not compatible, Region 1 staff with assistance from
                         one of its contractors converted FMF inspection and
                         enforcement data but not NONs, and entered it into the AFS
                         database.  Region  1 staff decided not to convert and enter
                         the NON data into AFS because OECA would  not draw
                         down this data and  Region 1 believed that MADEP would
                         soon be updating AFS.


                                   32                      Report No. 7100305

-------
 ®/l   OFFICE OF INSPECTOR GENERAL
          REPORT OF  AUDIT
                           Additionally, MADEP did not enter any monetary penalty
                           data into AFS even though state reports showed penalties
                           were assessed to major sources.  (Penalty data was
                           maintained in a third separate database.)  Neither FMF nor
                           SSEIS contained monetary penalty data fields.  Since AFS
                           was updated electronically from SSEIS, no penalty data was
                           available to update AFS.  MADEP did not receive any
                           special waivers from Region 1 exempting  them from entering
                           C&E and penalty data into AFS on a quarterly basis.
                           Regardless of MADEP's concern on maintaining of separate
                           media databases, MADEP was still responsible for updating
                           AFS in a timely manner per the grant agreement's special
                           conditions. The  decision to stop entering  data in SSEIS was
                           made with no contingency plan  in place to comply with the
                           EPA grant requiring timely entering of data into AFS. Also,
                           Region 1 was forced to use additional resources to perform
                           a task that Region 1 already awarded grant funds to the
                           state to perform.
Under Reporting a Chronic    MADEP's under reporting of enforcement data into
Problem                    AFS was identified by Region 1 as a problem based on its
                           1993/1994 monitoring visit. The 1994 monitoring report
                           stated that under reporting was not a new problem.  It
                           indicated that work groups were established to deal with this
                           serious problem but efforts to resolve it needed to be
                           redoubled. The report also contained a section with areas
                           that warranted special attention. One of these areas
                           recommended that MADEP and Region 1 make a concerted
                           effort to solve the enforcement data reporting problems as
                           rapidly as possible. The section concluded that under
                           reporting will necessarily result in Massachusetts being
                           portrayed as conducting less enforcement than it actually
                           did.

                           The under reporting problem has not improved. The


                                     33                       ReportNo. 7100305

-------
 ®/l   OFFICE OF  INSPECTOR  GENERAL
         REPORT  OF AUDIT
                          workgroup did not complete its objectives.  MADEP's
                          inadequate data reporting represents a serious and chronic
                          problem which requires that Region 1's management play a
                          more aggressive role to ensure that the under reporting
                          problem is resolved.
Database Discrepancies      In addition to under reporting, database discrepancies
                          between the MADEP database and Region 1's AFS were
                          noted during our review. In our effort to select a universe of
                          major sources to review, we found the data contained in
                          MADEP's database varied from that in Region 1's AFS.
                          Some examples noted were as follows:

                          Enforcement Actions

                              MADEP's database contained information on 80
                              enforcement actions (NONs) having been issued in
                              FY 1996, while the AFS database showed 49
                              enforcement actions (NONs)  issued.

                          Inspections Conducted

                              MADEP's database showed that 108 inspections of
                              major sources were conducted in FY 1996, while the
                              AFS database contained information on 123 major
                              sources  inspected.

                          Synthetic Minors

                              In FYs 1995 and 1996, 411 major sources applied for
                              Restricted Emission Status (RES) or "Synthetic Minor"
                              classification. There were 279 sources approved as
                              RES in FY 1995.  However, the FMF and  AFS
                              continued to list these sources as majors.
                                   34                    Report No. 7100305

-------
®/l   OFFICE OF  INSPECTOR GENERAL
        REPORT OF AUDIT
                        True Majors

                            After identifying and subtracting the number of major
                            sources that were approved as RES or synthetic
                            minors, we found the MADEP database contained 39
                            "true majors" having been inspected in FY 1996. The
                            AFS database contained 54 "true majors" as
                            inspected in FY 1996.

                        The following discrepancies were found between the AFS
                        and FMF databases, specifically, for the MADEP's Northeast
                        (NERO) and Southeast (SERO) Offices.

                        NERO Enforcement

                            There were 14 NONs listed on the AFS but none on
                            the MADEP listing. Additionally,  there were 14 other
                            NONs on the MADEP listing that were not in AFS.

                        SERO Enforcement

                            There were three sources with NONs listed on the
                            AFS database that were not on the MADEP
                            database.  There were 22 NONs issued to major
                            sources on the MADEP's database that were not on
                            the AFS database.
                        NERO Inspections

                            The AFS database contained 24 major sources
                            having been inspected in FFY 1996 which were not in
                            the MADEP database. There were nine major
                            inspections in the MADEP's database that were not in
                            AFS.
                                 35                    Report No. 7100305

-------
 ®/l   OFFICE  OF  INSPECTOR GENERAL
          REPORT OF AUDIT
CONCLUSION
REGIONAL RESPONSE
                          SERO Inspections

                                The AFS showed 12 inspections of major sources
                                which were not on the MADEP database. The
                                MADEP's database contained seven major source
                                inspections which were not on AFS database.

                          In December 1996, Region 1 and MADEP started another
                          work group in conjunction with the Performance Partnership
                          Agreement with objectives to address reliability questions
                          between the two databases. One of the work group's initial
                          tasks was to identify that differences in databases existed.
                          Also, in March 1997, the EPA Region 1 Administrator sent
                          each New England state a matrix of its C&E data contained
                          in AFS to determine its accuracy. The Region 1 and
                          MADEP workgroup were aware of the database differences
                          but had not begun to reconcile the databases at the
                          conclusion of our field visit. The workgroup's agenda
                          contained a milestone to reconcile the databases on a
                          quarterly basis, starting in January through October 1997.
Considering the length of time that data reconciliation has
remained a problem, Region 1 and MADEP need to more
aggressively resolve this issue. Region 1 also needs to hold
MADEP accountable for carrying out the grant conditions it
agreed to when it accepted program funding. Inaccurate
data will adversely affect EPA's decision making.
The Region agreed that improvement needed to be made:

     Another shortcoming of the region's program
     relationship with Massachusetts was our inability to
     make SEIS (sic), FMF and AFS communicate
     effectively.  We concur with your finding that EPA
                                    36
                                 Report No. 7100305

-------
 ®/l    OFFICE OF INSPECTOR GENERAL
          REPORT OF AUDIT
                               New England and MADEP need to resolve database
                               discrepancies. We appreciate that states such as
                               Massachusetts may have data needs unaddressable
                               through EPA data systems and that these EPA
                               systems may not be optimally designed for the
                               challenges of the next millennium. However, this
                               does not eliminate the obligation of a state to
                               adequately support EPA's data needs. We are
                               working with MADEP to reconcile the scope and
                               mechanics of data reporting for our respective
                               systems.

                          Because the Region and MADEP were making efforts to
                          improve the data system, the Region did not intend to
                          withhold FY 1997 grant funds for nonperformance of data
                          maintenance.
OIG EVALUATION
We encourage the Region to continue its effort on this issue.
However, we continue to recommend that the Region
withhold grant funds for nonperformance. MADEP agreed to
support EPA's data needs as part of its grant agreement.
Because MADEP did not carry out that responsibility, the
Region had to expend other resources to meet its data
needs.
MADEP RESPONSE
While MADEP agreed that data management could be
improved, it disagreed with the OIG's presentation of the
problems:

     The OIG misrepresents DEP's compliance and
     enforcement reporting to EPA-New England. All
     references by the OIG to DEP's failure to report any
     compliance and enforcement data for FFY96 are
                                   37
                                Report No. 7100305

-------
 ®/l   OFFICE OF INSPECTOR GENERAL
          REPORT OF  AUDIT
                                incorrect statements of the facts, ignoring semi-
                                annual paper reports, and the electronic data
                                provided, however late.  DEP explained to the OIG
                                that, although internal problems with reporting of
                                significant violators and with electronic data reporting
                                exist, semi-annual paper reports of all compliance
                                and enforcement activities were provided to EPA in a
                                specially-prepared format to accommodate EPA's
                                segregated regulatory programs. DEP offered to
                                reconcile the specific data differences between AFS
                                and FMF, but EPA-New England failed to provide the
                                requested AFS data necessary for reconciliation.
                                That data was recently provided to DEP.  Also,
                                references to the electronic data provided to EPA in
                                FMF-format which required additional EPA resources
                                to process are misleading. This data was provided to
                                EPA on diskette in ASCII format, the universal data
                                format, at EPA's request. Additional work remains to
                                be done, largely by DEP, to improve electronic data
                                reporting.
OIG EVALUATION            Our report was amended to show that MADEP submitted
                           semi-annual C&E paper reports to EPA.  However, these
                           reports were not substitutes for the grant requirement to
                           update AIRS quarterly. MADEP acknowledged this
                           requirement since they had staff enter data from FMF into
                           SSEIS in order to update AIRS. MADEP entered no data
                           into AIRS in FFY 1996.  Incomplete data was entered in
                           October 1996 and complete data for FFY 1996 was not
                           entered until March 1997.  The lateness in updating AIRS
                           and the incompleteness of data resulted  in enforcement
                           data being under reported  in FFY 1996.  In order for data to
                           be useful it must be current and complete. At the time of our
                           field work we were advised that no data for FFY 1997 had
                           been entered into AIRS. This demonstrates a chronic


                                    38                      Report No. 7100305

-------
 ®/l   OFFICE OF  INSPECTOR GENERAL
         REPORT OF AUDIT
                          problem which needs to be addressed by Region 1.

                          Regarding reconciliations, MADEP acknowledged that the
                          necessary AFS report was received and Region 1 stated
                          that reconciliations are taking place.  We trust that the
                          Region/MADEP partnership will prevent future problems
                          MADEP claimed it had in obtaining data from Region 1.

                          MADEP's submission of data in ASCII format rather than
                          FMF format is irrelevant.  The grant agreement required
                          MADEP to update AIRS.  Region 1 in fact updated AIRS
                          because it had to convert MADEP's ASCII formatted data in
                          order to get it into AIRS. This was not Region 1's
                          responsibility.

                          We concur that MADEP needs to do additional work to
                          improve data reporting.
RECOMMENDATIONS       We recommend that the Regional Administrator:

                         1.     Require MADEP to comply with the grant's reporting
                               requirements such as entering C&E along with
                               penalty data into AFS on a quarterly basis.

                         2.     Require MADEP to provide, for Region 1's review,
                               quarterly reconciliations between AFS and FMF
                               databases.

                         3.     Consider adjusting the amount of the current MADEP
                               grant award for not complying with the 1996 grant
                               requirements. Also, adjust future grant awards if
                               MADEP's reporting does not improve or begins to
                               regress.
                                   39                     ReportNo. 7100305

-------
®/l OFFICE OF INSPECTOR GENERAL
    REPORT OF AUDIT
                 40          Report No. 7100305

-------
®/l    OFFICE OF INSPECTOR GENERAL
         REPORT OF  AUDIT
                          CHAPTER 4
             Region 1 Needs to Evaluate FIRST Protocol
                         While MADEP provided an evaluation of its use of the
                         FIRST protocol, this evaluation's conclusions were not
                         definitive. Also, MADEP claimed in its report that a single
                         inspector was performing the inspections when in fact
                         staffing varied.  FIRST protocol inspections did not include
                         all minimum requirements for a Level 2 inspection even
                         though Region 1's State C&E Coordinator said the
                         inspections were to be equivalent to a Level 2 inspection.
                         Additionally, MADEP had not established a structured
                         training program for FIRST inspections and did not maintain
                         a control system to track training needs. Region 1 allowed
                         MADEP to conduct its own evaluation and did not plan to
                         review MADEP's use of the FIRST protocol until  1999.  In
                         our opinion, Region 1 placed too much reliance upon the
                         state to evaluate itself. Without conducting its own
                         evaluation, Region 1 cannot be assured that FIRST protocol
                         inspections met federal inspection standards or adequately
                         identified significant environmental problems and supported
                         enforcement actions.

                         Region 1 and MADEP developed the FIRST protocol, issued
                         October 31, 1994, for use during multimedia inspections.
                         Region 1 allowed MADEP to use the FIRST protocol with the
                         understanding that an evaluation would be conducted.  In a
                         March 29, 1996 Letter from MADEP's Assistant
                         Commissioner, Bureau of Waste Prevention, to Region 1,
                         MADEP agreed to perform an evaluation of the FIRST
                         protocol to determine if its use resulted in :
                                  41                     Report No. 7100305

-------
 ®/l   OFFICE OF INSPECTOR  GENERAL
          REPORT  OF  AUDIT
                                     .  the discovery of significant environmental
                                       problems, and

                                     .  sufficient support for enforcement cases.
                           MADEP included its evaluation of the FIRST protocol in the
                           April 1997, "An Evaluation of the Massachusetts
                           Compliance Assurance Demonstration Grant."  MADEP's
                           Deputy Director for Business Compliance Division stated
                           that Chapter 2, which showed increased enforcement
                           effectiveness, supported the conclusion that multimedia
                           inspections were effective.  In Chapter 2, "Inspection and
                           Enforcement Trends and Analysis," MADEP reported that
                           since 1993 its rate of overall enforcement actions increased
                           and, except for 1996, its higher level enforcement actions
                           increased. Chapter 4 also included an evaluation of the
                           FIRST protocol based upon interviews with MADEP
                           inspectors.
MADEP Evaluation           In our opinion, conclusive support was missing from
Not Conclusive              MADEP's April 1997 report to substantiate whether the
                           FIRST protocol was effective in identifying significant
                           environmental problems. In the report's Executive
                           Summary, MADEP stated that significant reporting and
                           reconciliation difficulties were encountered due to the
                           installation of a new multimedia data system. As a result,
                           MADEP claimed an 85 percent accuracy rate for the data
                           provided. In our opinion, this left too much room for error in
                           evaluating trends.

                           Additionally, MADEP did not compare its results to a period
                           when traditional inspection  approaches were used.
                           MADEP's trends and analysis reports started with 1993,


                                    42                      Report No. 7100305

-------
®/l   OFFICE OF INSPECTOR  GENERAL
         REPORT  OF  AUDIT
                          when multimedia inspections were implemented on a full
                          scale basis. Therefore, we do not know the results of
                          different inspection approaches.

                          MADEP did not define significant violations. We do not
                          know what type of violations make up the overall
                          enforcement rate. A schedule entitled, "Higher Level
                          Enforcement Rate (as % of inspections)" was also
                          presented. While MADEP indicated that such actions
                          represented more serious environmental problems, we do
                          not know if EPA defined significant violations would be
                          included in this category. This schedule (exhibit 2-3)
                          showed increases from 1993 but a decrease in 1996.
                          MADEP suggested various reasons for changes in
                          enforcement rates from revised targeting to providing
                          enforcement training for inspectors. It also wrote, "Note that
                          the enforcement rate numbers suggest the efficacy of the
                          FIRST Protocol B at finding environmental problems."
                          However, MADEP did not explain how it reached this
                          conclusion. No direct correlation was made showing how a
                          particular inspection approach resulted in identification of
                          violations.

                          MADEP's evaluation was also based upon interviews with
                          inspectors. However, MADEP qualified its evaluation with:

                               Any conclusions and findings must be qualified with
                               an awareness that a great deal of ambivalence
                               remains in DEP regional offices and among some
                               DEP staff as to whether any types of multimedia
                               inspection should have been attempted, and for what
                               types of regulated entities it is or would be most
                               effective.

                          Since MADEP staff may be ambivalent to this  new
                          approach, Region 1 staff may be able to add some


                                   43                      Report No. 7100305

-------
 ®/l   OFFICE OF INSPECTOR GENERAL
          REPORT OF  AUDIT
                           objectivity to the evaluation.

                           Because of the above weaknesses in MADEP's evaluation
                           of its use of the FIRST protocol, we believe Region 1 needs
                           to conduct its own evaluation. Region 1 should also do its
                           own evaluation to determine how well FIRST inspections are
                           meeting federal requirements.
Inspections Not              For example, Region 1 staff should determine if FIRST
Level 2 Equivalent      inspections were equivalent to EPA's Level 2 inspections as
                     envisioned.  For six inspection reports reviewed, we determined
                     that one inspection was clearly equivalent to a Level 2 inspection;
                     one inspection was not equivalent; and the remaining four
                     inspections did not include adequate documentation to support a
                     Level 2 designation. In general, those four inspections did not
                     adequately address control equipment.
                           Region 1's State C&E Coordinator stated that inspections
                           using the FIRST protocol were equivalent to Level 2
                           inspections. EPA's "CAA Compliance/Enforcement
                           Guidance Manual," Chapter Three, states that Level 2
                           inspections are considered a compliance determining
                           inspection.

                           Additionally, only Level 2 inspections are counted for
                           reporting purposes in EPA's database. EPA's March 29,
                           1991, "Revised Compliance Monitoring Strategy" provided
                           that: "For an on-site visit to a stationary source to be
                           countered as an inspection, it must meet the minimum
                           requirements of a  Level 2 inspection as determined in "The
                           Clean Air Act Compliance/Enforcement Guidance Manual"
                           (Revised 1987),..."

                                    44                      Report No. 7100305

-------
 ®/l   OFFICE OF INSPECTOR GENERAL
          REPORT OF AUDIT
                           For the six inspections we reviewed: the one inspection
                           considered Level 2 equivalent was reported in AFS; the one
                           inspection not Level 2 equivalent was reported in AFS; and
                           two of the remaining four were reported in AFS. Thus,
                           MADEP received equal credit as other states for conducting
                           Level 2 inspections when in fact not all the minimum
                           requirements were met.
FIRST Protocol Pilot          Region 1's APT Chief said Region 1 would review the FIRST
Identified Problems          protocol during its state multimedia enforcement review in
                           FY 1999. In our opinion, Region 1 allowed too much time to
                           pass before making its own assessment of a new, innovative
                           approach. We noted that a 1994 joint EPA/state evaluation
                           of the FIRST protocol pilot resulted in identifying serious
                           problems. An August 30, 1994 memorandum from the EPA
                           Pilot Evaluation Team to MADEP stated:

                                 In general,  it appears that the pilot showed that the
                                 protocol failed to meet some, if not all, of its intended
                                 objectives.  As a result of field testing, field staff and
                                 their managers felt,  to varying degrees, that the
                                 protocol did not save time, did not necessarily help
                                 them to recognize significant violations, and did not
                                 help them more readily recognize pollution reduction
                                 opportunities. Furthermore, pilot staff who felt weak
                                 in a particular program seemed to require more
                                 guidance, not less, and documentation of inspections
                                 with an abbreviated format was found to be
                                 insufficient to support follow-up and impractical
                                 logistically.

                           MADEP's April 1997 evaluation continued to report similar
                           concerns. Chapter 4 listed some of the following concerns
                           regarding use of FIRST inspections:
                                     45                      Report No. 7100305

-------
 ®/l   OFFICE OF INSPECTOR GENERAL
          REPORT OF  AUDIT
                                - they are not as likely to provide as much depth as
                                an inspection for a single waste medium;

                                - they are more time-consuming (takes longer to do
                                an inspection);

                                - inspectors are expected to know details of every
                                program and it is difficult to remain current on so
                                many regulations;

                                - they are difficult to perform effectively for large
                                facilities;

                                - fewer air and hazardous waste inspections occur
                                statewide (that is, fewer targeted inspections of EPA
                                priority sources or "majors" in these programs).

                           Considering problems identified at the pilot stage continued
                           into the implementation phase, we believe Region 1 should
                           become active in reviewing the protocol now.
Inspection Staffing           We also found that even though MADEP stated in its April
                           1997 report that multimedia inspections were to be
                           performed by a single inspector rather than a team of single-
                           media inspectors, staffing varied by state regional office.
                           Interviews with three of the four MADEP Deputy Regional
                           Directors disclosed that each held a different view on
                           staffing of multimedia inspections. The NERO Deputy
                           Regional Director stated that regardless of facility size,  only
                           one  inspector was sent, 90 percent of the time. She
                           believed MADEP intended for a single inspector, not a  team
                           of single-media inspectors, to perform the multimedia
                           compliance inspections.

                           The  SERO Deputy Regional Director emphatically stated

                                    46                      Report No.  7100305

-------
®/l   OFFICE OF  INSPECTOR GENERAL
         REPORT OF AUDIT
                          that multimedia inspections did not mean one inspector per
                          facility, but rather one facility would be completely inspected
                          at one time, even if it took more than one inspector. He said
                          it would be highly unlikely and in only extremely, rare
                          instances that one inspector could effectively inspect a
                          major facility.  He also stated that a small facility, with only
                          one process,  could be inspected by a single inspector.

                          The CERO Deputy Regional Director stated that a major
                          concern of many inspectors was the expectation that they
                          will have to be the sole, expert inspector for each multimedia
                          area.  She said inspectors very often went in pairs or sought
                          the advice of  other inspectors to ensure all  multimedia
                          inspections were adequately performed.  She stated two
                          inspectors were used to inspect a large major facility.
                          However, one inspector may be sent to inspect a facility
                          which was considered to be a minor source of pollution.

                          By relying solely on MADEP's April 1997 report, Region 1
                          did not receive the entire picture of how the FIRST
                          inspections were implemented. MADEP's report gave the
                          impression that only one inspector was conducting
                          multimedia inspections.

                          Region 1 needs more detailed information to make a better
                          decision  regarding the future use of the FIRST protocol.
                          Region 1 also needs to evaluate whether MADEP's use of
                          the FIRST protocol significantly deviated from national
                          standards. Part of Region 1's responsibilities is to ensure
                          that national standards are implemented, monitored and
                          enforced consistently in all the states (EPA Assistant
                          Administrator's February 21, 1996 memorandum, "Core EPA
                          Enforcement  and Compliance Assurance Functions").  Once
                          Region 1 has finalized its review, it should seek EPA
                          Headquarters concurrence for permanent use and the
                          possibility of encouraging other states to use this new


                                    47                      Report No. 7100305

-------
 ®/l   OFFICE OF INSPECTOR GENERAL
          REPORT OF AUDIT
                           approach.
MADEP Needs to
Establish a Structured
Training Program
As part of Region 1's evaluation of MADEP's
implementation of the FIRST protocol, we recommend
that Region 1 review MADEP's training of multimedia
inspectors.  MADEP did not have training criteria for
multimedia inspectors and did not maintain training records
or a tracking system to determine  inspector training needs.
We believe a more structured training program would assist
the state to effectively and consistently perform multimedia
inspections.

The June 29, 1988, EPA Order 3500.1 provides:

      Because State and  local personnel perform more
      than 80% of all environmental compliance inspections
      nationally under delegated or approved programs, it is
      essential for EPA to work with the State and local
      agencies to help assure that their personnel too
      receive ample training and development. Although
      this program does not require State/local agencies to
      train compliance inspector/field investigators, it does
      encourage these agencies to adopt structured
      approaches to train  their personnel, recognizing
      State-specific concerns and the value of alternate
      instructional methods, and to use EPA-developed
      training materials where appropriate.

The Order further states that: "EPA's training program
recognizes the importance of this mutual relationship in
design and implementation of inspector training."

MADEP's Training Coordinator, Bureau of Waste Prevention
(BWP), stated there was no written criteria or established
                                     48
                                  Report No. 7100305

-------
®/l   OFFICE  OF  INSPECTOR GENERAL
         REPORT OF  AUDIT
                           policy for multimedia inspector training.  The one exception
                           was the requirement for multimedia inspectors to attend
                           health and safety training. He also stated that there was no
                           state-wide certification program for MADEP multimedia
                           inspectors. Additionally, MADEP did not control training by
                           maintaining individual training records or a database tracking
                           system. Without a structured training program and a
                           database to track individual training, there was no assurance
                           that inspectors have been adequately trained to adequately
                           perform multimedia inspections. Effective inspector
                           multimedia training is essential to the consistent, thorough
                           completion of multimedia environmental compliance
                           inspections.

                           Multimedia classroom training was conducted initially in
                           June 1994 and again in  November 1994. However, since
                           November 1994, only written training materials and guidance
                           documents were provided; no general classroom instruction
                           was conducted.  Classroom training since November 1994
                           was offered only in media specific topics. Inspectors hired
                           since November 1994 have been trained almost entirely
                           through informal, field "mentoring" approaches conducted on
                           as-needed basis by each state regional  office.

                           We also learned that inspector performance was informally
                           discussed between the supervisor and inspector without any
                           formal, written, performance evaluations prepared. Two of
                           the three Deputy Regional Directors stated that supervisors
                           should observe inspector performance and  prepare formal
                           written evaluations of the inspector's performance on an
                           annual basis. Both Deputy Regional Directors believed this
                           was an excellent way to identify areas where inspectors may
                           need additional multimedia training.  The third Deputy
                           Regional Director believed the current system was adequate
                           and additional formal written evaluations were not
                           necessary.


                                    49                       Report No. 7100305

-------
®/l    OFFICE OF INSPECTOR  GENERAL
         REPORT OF  AUDIT
                         According to Chapter 4 of MADEP's April 1997 evaluation
                         report, inspectors offered the following criticisms:

                              - not enough training at the time;

                              - lack of hands-on training at sites in the field;

                              - lack of training for inspectors who have joined BWP
                              since the protocol was delivered;

                              - absence of on-going training;

                              - lack of follow-up training subsequent to training
                              sessions;
                              - training should be geared to different levels of
                              inspectors;

                              - training should be interactive;

                              - inspectors would have liked longer and more
                              comprehensive training, particularly in the media in
                              which they were unfamiliar.

                         Additionally, the MADEP Deputy Director for Business
                         Compliance Division, Enforcement and Audit Unit; MADEP's
                         Training Coordinator, BWP; and three MADEP Deputy
                         Regional Directors expressed the following concerns on
                         multimedia training:

                              - there was no written criteria for multimedia training;

                              - lack of a central/regional data base tracking system
                              to  ensure all training is documented.  There was no
                              central data base tracking system to access an
                                   50                      Report No. 7100305

-------
 ®/l    OFFICE OF INSPECTOR GENERAL
          REPORT OF  AUDIT
                               inspector's training file to determine what courses an
                               inspector had completed or needed to complete;

                               - there were no training records;

                               - lack of training funds;

                               - Region 1 had not been responsive to MADEP
                               training needs;

                               - needed more in-depth multimedia specific training;

                               - needed to provide people more skills on how to work
                               together as a multimedia team;

                               - needed a larger, better selection of training courses;
                               and

                               - difficult to get training  in a central training classroom.
CONCLUSION               Region 1 needs to conduct its own evaluation of MADEP's
                          use of the FIRST protocol. MADEP's evaluation did not
                          provide conclusive evidence that the protocol was more
                          effective in identifying significant violators, especially as
                          defined by EPA.  Data system weaknesses and MADEP
                          staff's resistance to accepting the FIRST protocol may have
                          clouded results. Also, MADEP's evaluation reported that
                          problems which were identified in the pilot phase continued
                          into the implementation phase. MADEP's presentation of
                          how the FIRST inspections were staffed was unclear. An
                          EPA review should also focus on how well the FIRST
                          inspections were at meeting federal standards. Our limited

                                    51                     Report No. 7100305

-------
 ®/l    OFFICE OF INSPECTOR GENERAL
          REPORT OF  AUDIT
                          review showed that FIRST inspections may not be
                          equivalent to Level 2 inspections. This information is
                          important to determine program success.

                          Adequate training of inspectors is another important aspect
                          in determining how well the FIRST protocol was working.
                          MADEP did not have training standards, a structured training
                          program, or controls in place to assure that inspectors
                          received technical expertise to effectively perform
                          multimedia inspections. Region 1 and MADEP should work
                          together to develop a structured multimedia training
                          program. Such a program would help to ensure the success
                          of the implementation of MADEP's innovative, inspection
                          approach.

                          With an independent evaluation of the FIRST protocol and a
                          structured  training program, Region 1 can assist not only
                          MADEP, but other states which may wish to learn from this
                          demonstration program.
REGIONAL RESPONSE       In response to our recommendations the Region stated that
                          it will:

                               1.     commit to its own analysis of the FIRST
                                     protocol in FY 1998;
                               2.     share the results of its review with OECA and
                                     solicit input from appropriate OECA staff and
                                     management;

                               3.     work with MADEP to ensure that there is a
                                     clearly articulated training program in place at
                                     MADEP for inspectors applying the FIRST


                                    52                     Report No. 7100305

-------
 ®/l   OFFICE OF  INSPECTOR GENERAL
          REPORT  OF AUDIT
OIG EVALUATION
                                     protocol; and

                                4.    encourage MADEP to document the training
                                     profiles of its inspectors.

                           Region 1 also stated that it typically includes a discussion of
                           state assistance needs in the PPA/PPG and will be sure to
                           include training support in the FY 1998 PPA discussions.
We are pleased with the Region's positive actions to
address our recommendations.
MADEP RESPONSE
MADEP believed that the OIG did not properly interpret
segments of their April 1997 report, An Evaluation of the
Massachusetts Compliance Assurance Demonstration
Grant. Their statement regarding an 85 percent accuracy
rate for data was meant only to "characterize" the data.
Additionally, MADEP's statement that conclusions and
findings must be qualified with an awareness that some
MADEP staff were ambivalent toward the multimedia
approach was not meant to qualify the entire report.

MADEP did not believe it was appropriate to compare an air
quality Level 2 inspection to a multimedia FIRST inspection.
The FIRST protocol was never intended to be equivalent to
a single-medium inspection according to MADEP. It wrote,
"We remain confident that the environmentally significant
issues of regulatory compliance were not overlooked, and
that any potential losses in depth in individual regulatory
programs are out weighed  by the benefits of breadth across
all regulatory programs." MADEP also stated that the OIG
did not find that the FIRST protocol was ineffective in
identifying significant violations.
                                    53
                                 Report No. 7100305

-------
 ®/l   OFFICE OF  INSPECTOR  GENERAL
          REPORT OF AUDIT
                           Finally, MADEP did not agree that a structured, multimedia
                           inspector training program was warranted. MADEP believed
                           its initial, multimedia training along with various media
                           specific and on the job training was sufficient.
OIG EVALUATION            We have not changed our conclusion that conclusive
                           support was missing from MADEP's April 1997 report to
                           substantiate the effectiveness of the FIRST protocol.
                           MADEP's conclusions were based upon staff interviews
                           (which it qualified) and its data (85 percent accurate). Our
                           finding was not intended to conclude that the FIRST protocol
                           was or was not effective, only to show that sufficient
                           information was not available to make a conclusion. This is
                           one reason why we recommended that Region 1 conduct its
                           own evaluation. The other reason was to assure that
                           inspections using the protocol address federal expectations.

                           Such a federal expectation would be whether or not the
                           inspections are equivalent to an EPA Level 2 inspection.
                           Region  1 staff stated that FIRST inspections were to be
                           "equivalent" to Level 2 inspections. The FIRST inspection
                           manual provided for a comparable review. Our review
                           showed that such comparability may not be occurring.
                           Therefore, we believe the Region should evaluate this issue.

                           We continue to recommend that MADEP establish a
                           structured training program.  MADEP's lack of training
                           standards, inspector training records, or a data tracking
                           system  did not provide controls to assure the adequacy of
                           inspector training.  MADEP undertook a significant change in
                           how inspections were conducted.  MADEP's April 1997
                           report indicated that some personnel had still not bought into
                           this concept and others believed they needed  more training.
                           In our opinion, a structured training program should help
                           address these issues.

                                     54                      Report No. 7100305

-------
 ®/l   OFFICE OF  INSPECTOR GENERAL
         REPORT OF AUDIT
RECOMMENDATIONS        We recommend that the Regional Administrator require his
                         staff to:

                         1.    Conduct an independent evaluation of MADEP's use
                              of the FIRST inspection prior to FY 1999. The
                              Region should consider efficiency and cost.

                         2.    Discuss the results of your review with EPA
                              Headquarters and, if applicable, seek Headquarters
                              concurrence for permanent or expanded use of the
                              FIRST protocol.

                         3.    Encourage the MADEP to adopt a structured training
                              program to ensure all inspectors are adequately
                              trained to perform multimedia inspections.

                         4.    Work with MADEP staff to develop training criteria for
                              multimedia inspector training.

                         5.    Assist MADEP to develop a database tracking system
                              to monitor inspector training.

                         6.    Assess MADEP's training needs annually through
                              state/EPA work group participation. This will help
                              improve communications between EPA and MADEP.
                                  55                     ReportNo. 7100305

-------
®/l OFFICE OF INSPECTOR GENERAL
    REPORT OF AUDIT
                 56          Report No. 7100305

-------
 ®/l   OFFICE OF INSPECTOR GENERAL
         REPORT OF AUDIT
                                               APPENDIX 1
                        GLOSSARY OF ACRONYMS
AFS
AIRS
APT
BWP
CAA
C&E
CERO
CMS
EAD
FFY
FIRST
FMF
FMFIA
FY
MADEP
NERO
NESHAP
NON
NSPS
OECA
PPG
SERO
SIP
SSEIS
SV
VOC
Air Facility Subsystem
Aerometric Information and Retrieval System
Air, Pesticides, Toxics
Bureau of Waste Prevention
Clean Air Act
Compliance and Enforcement
Central Regional Office (of MADEP)
Compliance Monitoring Strategy
Eastern Audit Division
Federal Fiscal Year
Facility-wide Inspection to Reduce the Source of Toxics
Facility Master File
Federal Manager's Financial Integrity Act
Fiscal Year
Massachusetts Department of Environmental Protection
Northeast Regional Office
National Emissions Standards for Hazardous Air Pollutants
Notice of Noncompliance
New Source Performance Standards
Office of Enforcement and Compliance Assurance
Performance Partnership Grant
Southeast Regional Office
State Implementation Plan
Stationary Source Emission Inventory System
Significant Violator
Volatile Organic Compound
                                  57
                                         Report No. 7100305

-------
®/l OFFICE OF INSPECTOR GENERAL
    REPORT OF AUDIT
                 58          ReportNo. 7100305

-------
 ®/l   OFFICE  OF INSPECTOR  GENERAL
         REPORT OF  AUDIT
                                                APPENDIX 4
                             DISTRIBUTION
Headquarters

Office of Inspector General - Headquarters (2421)
Agency Audit Follow up Coordinator (3304)
Agency Audit Follow up Official (3101)
Assistant Administrator for Enforcement and Compliance Assurance (2201 A)
Assistant Administrator for Air & Radiation (6101)
Associate Administrator for Congressional & Legislative Affairs (1301)
Associate Administrator for Communications, Education & Public Affairs (1701)
Associate Administrator for Regional Operations & State/Local Relations (1501)
EPA Library (3403)

EPA Region 1

Regional Administrator
Director, Office of Environmental Stewardship
Enforcement Managers (OES)
Chief, Air, Pesticides and Toxics Office
Audit Coordinator

Other

Office of Inspector General - Divisional Offices
General Accounting Office
                                  59                    Report No. 7100305

-------