£
<
33
\

r"
prO"^
o
z
UJ
o
T
OFFICE OF INSPECTOR GENERAL
Catalyst for Improving the Environment
Evaluation Report
EPA Needs to Track
Compliance with Superfund
Cleanup Requirements
Report No. 08-P-0141
April 28, 2008

-------
Report Contributors:	Carolyn Copper
Jessica Knight
Steven Weber
Gerry Snyder
Andrew Creath
Michael Owen
Abbreviations
CERCLA
Comprehensive Environmental Response, Compensation, and Liability Act
CERCLIS
Comprehensive Environmental Response, Compensation, and Liability

Information System
EPA
U.S. Environmental Protection Agency
GAO
Government Accountability Office
NPL
National Priorities List
OECA
Office of Enforcement and Compliance Assurance
OIG
Office of Inspector General
OSWER
Office of Solid Waste and Emergency Response
SNC
Substantial Non-Compliance

-------
*. U.S. Environmental Protection Agency	08-P-0141
% Office of Inspector General	April 28 2008
St
O
% w At a Glance
Catalyst for Improving the Environment
Why We Did This Review
We conducted this review to
evaluate whether the U.S.
Environmental Protection
Agency (EPA) has resolved
violations to Superfund
enforcement instruments
consistent with its guidance,
practice, and authorities.
Background
The Comprehensive
Environmental Response,
Compensation, and Liability
Act provides EPA with
multiple enforcement
authorities to compel
responsible parties to conduct
and pay for Superfund
cleanups. Under its authority,
EPA can implement
Superfund enforcement
instruments to ensure that
responsible parties address
environmental contamination
at Superfund sites. EPA is
responsible for enforcing the
terms specified in Superfund
enforcement instruments,
including taking action when
violations occur.
For further information,
contact our Office of
Congressional and Public
Liaison at (202) 566-2391.
To view the full report,
click on the following link:
www.epa.aov/oia/reports/2008/
20080428-08-P-0141 ,pdf
EPA Needs to Track Compliance with
Superfund Cleanup Requirements
What We Found
According to EPA's Superfund information system, there were 3,397 active
Superfund enforcement instruments to ensure cleanups at National Priorities List
sites as of September 30, 2007. Yet, EPA does not nationally compile or track
data on substantial non-compliance (SNC) with the terms or requirements of these
instruments. Therefore, we were not able to fully determine whether the regions
have resolved Superfund instrument violations consistent with criteria and
authorities. In 2000, though, EPA recognized it needed to improve in this area. It
issued an internal report recommending that the regions improve their data on the
compliance status of Superfund enforcement instruments and responses to non-
compliance. However, EPA has not implemented this recommendation.
Consequently, the Agency lacks the internal controls necessary to monitor
compliance with Superfund instruments nationally.
In a limited review of EPA regions" enforcement records, we found that two
regions" enforcement actions, in 12 instances of SNC, were consistent with EPA
guidance and authorities. While the regions took appropriate actions to address
these 12 violations, Region 5 had not established necessary and enforceable
requirements to address contamination from the Muskego Landfill Site, in
Waukesha County, Wisconsin.
What We Recommend
We recommend that EPA track and monitor substantial non-compliance by using
and modifying, as appropriate, the existing Superfund information system. We
also recommend that EPA establish enforceable response actions to address
contamination from the Muskego Landfill Site. EPA agreed with our
recommendations and proposed responsive actions to address them.

-------
< jyi
# rr-m 'o	UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
0	S	WASHINGTON, D.C. 20460
PRO"^
OFFICE OF
INSPECTOR GENERAL
April 28, 2008
MEMORANDUM
SUBJECT:
EPA Needs to Track Compliance with Superfund Cleanup Requirements
Report No. 08-P-0141
FROM:
Wade T. Najjum ^ J •
Assistant Inspector General
Office of Program Evaluation
J'rjii
¦yu

TO:
Granta Nakayama
Assistant Administrator
Office of Enforcement and Compliance Assurance
Mary Gade
Region 5 Administrator
This is our report on the subject evaluation conducted by the Office of Inspector General (OIG)
of the U.S. Environmental Protection Agency (EPA). This report contains findings that describe
the problems the OIG has identified and corrective actions the OIG recommends. The OIG
responded to the Agency's draft report comments by making changes to the report and providing
responses to EPA, as appropriate. This report represents the opinion of the OIG and does not
necessarily represent the final EPA position. Final determinations on matters in this report will
be made by EPA managers in accordance with established resolution procedures.
The estimated cost of this report - calculated by multiplying the project's staff days by the
applicable daily billing rates in effect at the time - is $326,997.
Action Required
In accordance with EPA Manual 2750, you are required to provide a written response to this
report within 90 calendar days. Your response should include a corrective action plan for agreed
upon actions, including milestone dates. We have no objections to the further release of this
report to the public. This report will be available at http://www.epa.gov.oig.

-------
If you or your staff have any questions regarding this report, please contact Carolyn Copper,
Director for Program Evaluation, Hazardous Waste Issues, at (202) 566-0829 or
copper.carolyn@epa.gov; or Mike Owen, Project Manager, at (206) 553-2542 or
owen.michael@epa.gov.

-------
EPA Needs to Track Compliance with Superfund Cleanup Requirements
Table of Contents
Purpose 		1
Background 		1
Scope and Methodology		1
Noteworthy Achievements 		2
EPA Has a Large Universe of Superfund Instruments		2
EPA's Enforcement Process Provides Flexibility		3
EPA Does Not Nationally Track Superfund Non-Compliance		4
OECA and Region 9 Do Not Track Violations 		4
Lack of Data Prevents OECA from Determining Compliance		4
Regions' Responses to Violations Were Consistent
with Agency Enforcement Guidance, Policy, and Authorities		5
Regions Took Appropriate Actions to Address Violations		5
Region 5 Needs to Improve Enforcement Activities at the
Muskego Landfill Site		5
Recommendations 		7
Agency Comments and OIG Evaluation		8
Status of Recommendations and Potential Monetary Benefits		9
Appendices
A Details on Scope and Methodology		10
B Agency Response to Draft Report and OIG Evaluation		12
C Distribution		20

-------
Purpose
We sought to determine whether violations to Superfund instruments have been resolved
consistent with Agency guidance, practice, and authorities. We addressed the following
questions:
1.	What is the universe of Superfund instruments and how many of these instruments have
previous or current compliance violations?
2.	What are the Agency's guidance, policy, and authorities for enforcing Superfund
instruments?
3.	How does the Agency track Superfund instrument violations and actions taken to address
the violations?
4.	Have responses to and resolution of violations of Superfund instruments been consistent
with Agency enforcement guidance, policy, and authorities?
Background
In 1980, Congress established the Superfund program under the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA) to clean up the Nation's worst hazardous
waste sites. Through CERCLA, EPA has the authority to require that responsible parties conduct
site cleanups. The highest priority sites are designated as Superfund National Priority List (NPL)
sites. Responsible parties who agree to clean up Superfund sites can reach settlement
agreements with EPA. Settlement agreements include specific work requirements for the site.
They also include provisions for resolving disputes and assessing penalties for non-compliance.
To document settlements, EPA uses administrative orders on consent or judicial consent decrees.
EPA also has the authority to issue unilateral administrative orders if the responsible party
refuses to enter into a settlement or refuses to perform work.
EPA is responsible for enforcing the terms specified in settlement agreements and unilateral
administrative orders (Superfund instruments). If a responsible party does not comply with the
terms of a Superfund instrument, EPA can take actions to bring them into compliance. These
options typically range from informal negotiations to referrals to Department of Justice.
EPA's Office of Enforcement and Compliance Assurance (OECA) is responsible for managing
the enforcement aspects of the Superfund program. OECA's responsibilities include developing
and implementing national Superfund enforcement policy. OECA also provides national
direction and legal support to EPA's 10 regional offices. EPA's regional offices have primary
responsibility for getting responsible parties to conduct and pay for Superfund cleanups.
Scope and Methodology
We conducted this review in accordance with generally accepted government auditing standards.
Those standards require that we plan and perform the review to obtain sufficient, appropriate
evidence to provide a reasonable basis for our findings and conclusions based on our objectives.
We believe that the evidence obtained provides a reasonable basis for our findings and
1

-------
conclusions based upon our objectives. We performed our review from July 2006 to May 2007.
We evaluated violations meeting an OECA definition for substantial non-compliance (SNC). In
a 2000 report, OECA defined SNC as a violation that:
•	exacerbates a hazardous substance release or threatened release of a hazardous substance;
•	significantly differs from the terms of the Superfund instrument;
•	represents a pattern of recalcitrance or chronic non-compliance; and/or
•	is deemed substantial by the region for other reasons.
The Agency does not maintain national data on violations of these Superfund instruments. To
assess regional responses to compliance violations, we reviewed all instances of SNC identified
since January 2001 by Regions 5 and 9. We excluded from our review violations related to
responsible parties' obligations to pay EPA for Superfund costs. We also excluded violations
involving Federal facility Superfund sites.
Appendix A provides further details on our scope and methodology.
Noteworthy Achievements
In November 1998, OECA initiated an internal effort to assess responsible party compliance with
active Superfund instruments. The review evaluated whether responsible parties were meeting
their Superfund commitments in a timely and satisfactorily manner. The study included
obtaining and reviewing Superfund instrument information from all 10 EPA regional offices.
The Agency released its report on the study in September 2000. The study found that
responsible parties complied with more than 90 percent of active Superfund instruments. The
report also provided several recommendations to improve enforcing Superfund instruments and
improve instrument and compliance data.
EPA Has a Large Universe of Superfund Instruments
EPA had 3,397 active Superfund instruments establishing cleanup obligations for sites on the
NPL as of September 30, 2007. We identified the number of active Superfund instruments from
data provided by the Agency through its Comprehensive Environmental Response,
Compensation, and Liability Information System (CERCLIS, or Superfund information system).1
The number of active instruments excludes enforcement instruments for sites not on the NPL and
instruments involving responsible party payment obligations. As shown in Figure 1, the number
of active instruments also varies among the regions.
We were unable to determine, in a comprehensive manner, how many of these Superfund
instruments have previous or current compliance violations. EPA does not compile or track this
information.
1 The number of instruments may include enforcement instruments that have been completed and fully complied
with, but have not yet been closed out of CERCLIS. According to an OECA official, OECA is working with the
regions to close out enforcement actions where all response actions have been completed and all payment
obligations have been satisfied.
2

-------
Figure 1 - Total Number of Active Superfund Instruments for NPL Sites by Region.
700
600
500
400
300
200
100
0
Source
EPA's Enforcement Process Provides Flexibility
Sections 104, 106, 107, and 122 of CERCLA provide EPA legal authority to enforce the cleanup
of NPL sites and recover cleanup costs from responsible parties. The Agency has the authority
to:
•	Perform cleanups at a site and later recover the costs from responsible parties.
•	Enter into settlement agreements with responsible parties to clean up a site or pay for a
cleanup conducted by EPA.
•	Order responsible parties to perform a cleanup at a site, with the option of imposing
penalties if they fail to comply with the order.
EPA has established its process for addressing non-compliance with Superfund instruments in
guidance documents. This includes Guidance on Oversight of Potentially Responsible Party
Remedial Investigations and Feasibility Studies and the Interim CERCLA Settlement Policy. In
addition, EPA has summarized processes for addressing non-compliance in the Agency's
Superfund enforcement training manual.
EPA guidance communicates general steps that may be taken to respond to violations. The
guidance does not establish standard responses by violation type. The guidance also does not
specify time requirements for addressing and resolving a violation. According to guidance
documents and OECA managers, the Superfund enforcement process is flexible and depends on
several factors, including: (1) the responsible party's compliance history, (2) site conditions, (3)
duration of non-compliance, and (4) severity of non-compliance.
The regions have first line responsibility to enforce the requirements and terms in Superfund
instruments. Regions 5 and 9 assign a remedial project manager and attorney to each NPL site.
Region Region Region Region Region Region Region Region Region Region
1 23456789 10
OIG analysis of EPA's CERCLIS data.
3

-------
The remedial project manager and site attorney are responsible for ensuring that the responsible
party complies with the terms of the Superfund instruments. Our review of EPA's guidance and
interviews of managers and staff from the two regions disclosed that the regions' responses to
violations typically include the following steps:
•	Attempt to resolve the dispute informally.
•	Issue a formal notice of deficiency.
•	For an administrative order on consent or consent decree, invoke formal dispute
resolution procedures, as outlined in the instrument.
•	Take enforcement actions. These actions may include: (a) penalties, (b) EPA takeover of
site work, and (c) referral to the Department of Justice.
EPA Does Not Nationally Track Superfund Non-Compliance
The Agency does not track SNC with Superfund instruments nationally. As a result, EPA does
not have the data to measure how well, or whether, it is addressing and resolving SNC in the
Superfund program. This is a weakness in internal controls for assuring compliance with
Superfund requirements.
OECA and Region 9 Do Not Track Violations
Although OECA is responsible for managing Superfund enforcement, it does not track SNC with
Superfund instruments. The Agency also does not require the regions to track SNC with
Superfund instruments. However, one of the two regions we reviewed centrally tracks violations
of these instruments for sites in their region. Region 5 centrally tracks all violations using a
compliance field in CERCLIS. This field identifies the status of Superfund instruments using
compliance designations. These designations include: (1) In Compliance, (2) In Violation - No
Action Planned, (3) In Violation - Action Planned, or (4) In Violation - Action Taken.
According to a Region 5 manager, the Region uses this field to monitor the compliance status of
its Superfund instruments. Region 9, however, does not centrally track compliance violations or
responses to violations. Instead, the remedial project manager responsible for managing the site
generally tracks each violation and its resolution on a site-specific basis. As a result, Region 9
has fewer controls to track violations and their resolution than Region 5.
Lack of Data Prevents OECA from Determining Compliance
Due to the lack of a national system, OECA has limited information for assessing SNC with
Superfund instruments. OECA recognized and attempted to address this weakness in an internal
2000 report. However, EPA did not implement the report's recommendation that regions
improve the compliance data they report in CERCLIS, because OECA agreed to alternative
actions. According to an OECA senior attorney, the regions were opposed to implementing the
2000 internal report recommendation. The regions agreed, as an alternative, to monitor non-
compliance themselves.
Implementing the recommendation could improve national data and internal controls over
tracking SNC issues and their resolution. However, to improve the Agency's visibility over
4

-------
violations, OECA will need to restrict using the compliance field in CERCLIS to issues that meet
OECA's definition for SNC. Now, the Agency's definition of non-compliance for this field is
very general and includes minor violations of Superfund instruments. The Agency should also
add date fields in CERCLIS to provide data for EPA managers to measure the time taken to
resolve violations. CERCLIS does not include fields that identify non-compliance and return to
compliance dates. OECA managers informed us in September 2007 that OECA is working with
the regions to address this issue. OECA and the regions are working to establish a national
tracking system for SNC using CERCLIS. They said that OECA was taking this action in
response to our evaluation work.
Regions' Responses to Violations Were Consistent with Agency
Enforcement Guidance, Policy, and Authorities
Because no national data exists for instances of Superfund SNC, we could not fully evaluate the
Agency's responses to and resolution of SNC with Superfund instruments. However, we found
that the responses of Regions 5 and 9, addressing 12 instances of SNC, were consistent with
Agency guidance, policy, and authorities. While these Regions took appropriate enforcement
actions for these 12 violations, Region 5 had not established enforceable response requirements
for groundwater contamination migrating from the Muskego Landfill Site. This issue does not
violate existing Superfund instruments for the site. Rather, it represents a new issue where the
region has not established a Superfund instrument to address additional contamination from the
site.
Regions Took Appropriate Actions to Address Violations
The 12 instances of SNC occurred at 11 sites in Region 5 and 9 where responsible parties
generally failed to perform portions of the required work or did not provide adequate site access.
The responsible parties typically did not comply with the Superfund instruments because they
either disputed liability or had technical issues with the remedy design. The regions usually tried
to resolve the issues informally through meetings and letters. If these efforts were not
successful, the regions issued a formal notice of deficiency. In six of the cases, negotiations
followed the notices of deficiencies. The regions reached settlements with the responsible
parties resolving the violations for the six cases. In the more serious cases, the regions invoked
penalties as part of their enforcement actions. For example, at a site in Region 9, the responsible
party continually refused to perform the required work even though the Region issued multiple
notices of deficiency and an additional unilateral administrative order. Because of the multiple
violations, the Region required the responsible party to pay a penalty of $500,000. The Region
also required the responsible party to conduct a $1 million supplemental environmental project
and pay EPA $6.7 million for past costs.
Region 5 Needs to Improve Enforcement Activities at the Muskego Landfill Site
Region 5 has not established requirements for the party responsible for cleaning up the Muskego
Landfill site, in Waukesha County, Wisconsin, to address contaminated groundwater that has
migrated from the site. As a result, the responsible party has not submitted requested
information and has made little progress towards addressing the contamination.
5

-------
In late 1997 and early 1998, the State of Wisconsin detected contamination from Muskego
Landfill in several off-site residential wells. According to Region 5 managers and staff, this off-
site contamination does not pose an immediate threat to human health. The threat has been
addressed, they said, because the residences with contaminated wells have been connected to
municipal water. However, Region 5 staff said that they have not been able to obtain
documentation from the responsible party verifying that the residences have been provided
municipal water. According to the staff, the Region has requested this information on multiple
occasions, but the responsible party has not complied with the requests. Consequently, the
Region could not, and has not, assured that residences with contaminated wells have been
provided a potable water source.
Since at least January 1999, the Region requested, in meetings and with letters, that the
responsible party investigate the groundwater contamination, but delays have taken years. For
example, Region 5 requested in a January 1999 letter that the responsible party submit a
workplan for characterizing the off-site contamination within 30 days. Despite this request and
subsequent followup activities, the Region was unable to obtain an acceptable workplan from the
responsible party until August 2005 — more than 6 years later. Region 5 staff said that the
responsible party submitted several draft versions of the workplan that the Region found to be
deficient and they requested revisions. Because of the long delay with completing the workplan,
the Region did not receive an acceptable groundwater characterization report from the
responsible party until December 2006. The Region has reviewed the report and is identifying
sampling requirements necessary to complete a supplemental remedial investigation of the off-
site groundwater contamination. Our review of data in the report identified that the groundwater
contamination has migrated towards a municipal water supply well (Municipal Well #7) and
several additional residential wells. These wells may be at risk of becoming contaminated in the
future.
According to a Region 5 manager and staff, data and funding issues for the site limited the
Region's enforcement options that are outlined by EPA guidance. The manager and staff
thought that the Region did not have enough data on the contamination source to support the case
for issuing an additional unilateral administrative order to establish response requirements for the
off-site contamination. The staff also said that the Region did not take over the response because
it would have been difficult to convince EPA's Office of Solid Waste and Emergency Response
(OSWER) to approve funding for the work. The staff explained that the responsible party for the
site has the ability to pay for the work and OSWER usually reserves funding for sites without
viable responsible parties that have significant problems. Therefore, the Region did not request
funding from OSWER. Because of these issues, the Region's manager and staff felt that
pursuing negotiations with the responsible party was the best approach for getting the off-site
contamination cleaned up. The Region began these negotiations with the responsible party in
1999.
Region 5's continuing negotiations with the responsible party has achieved very little progress
towards addressing the off-site contamination and ensuring that human health and the
environment are protected. The Region must implement better controls to ensure protection to
human health and the environment, such as using a Superfund instrument that provides specific
response actions and milestones to address the off-site contamination issues.
6

-------
In September 2007, Region 5's Superfund Director notified us that the Region was in a much
stronger position to aggressively enforce compliance, because it has obtained additional data on
the off-site contamination. The Director also informed us that the Region has developed a plan
for establishing enforceable response actions and milestones for addressing the off-site
contamination issues. With regard to contaminated residential wells, the Director informed us
that the Region has been sampling residential wells over the past few years. The Director also
disclosed that the Region has recently begun an additional round of sampling to further verify
and confirm that all residential drinking water wells remain safe to use. The Region's reported
actions are needed steps towards verifying contamination in the residential wells near the site.
However, to fully assure that residents with contaminated wells have safe drinking water, the
Region will need to verify that these residences have been provided a potable water source.
Recommendations
We recommend that the Assistant Administrator for OECA:
1.	Request that the regions input compliance status data for Superfund instruments in
CERCLIS. Limit the CERCLIS input for the "In Violation" designations to issues that
meet OECA's definition for SNC.
2.	Add data fields in CERCLIS to capture dates when SNC with Superfund instruments was
identified and resolved. Request that the regions input this data into CERCLIS.
3.	Annually review the CERCLIS compliance data to monitor Agency status and progress in
managing SNC with Superfund instruments.
4.	Establish parameters or metrics that indicate an acceptable range of performance or
circumstances requiring explanation.
5.	Monitor Region 5's progress in establishing an enforceable Superfund instrument for the
Muskego Landfill Site that provides specific response actions and milestones to address
the off-site contamination issues. If Region 5 is unable to finalize this Superfund
instrument, take appropriate actions to ensure that enforceable response actions and
milestones to address the contamination issues are established.
We recommend that the Administrator for Region 5:
6.	Verify that residences with groundwater wells contaminated from the Muskego Landfill
Site either have been connected to municipal water or provided with some other potable
water source. Region 5's verification should include a review of appropriate sampling
data to ensure that all residential wells contaminated by the site have been identified. The
Region should also visit the residences with contaminated wells to confirm that the
residents have been provided with potable water.
7

-------
Agency Comments and OIG Evaluation
The OIG received comments on the draft report from OECA and Region 5 and we made changes
to the report where appropriate. Appendix B provides the full text of the Agency's comments
and the OIG's response.
OECA agreed with all recommendations for their action (Recommendations 1 through 5) and
described corrective actions that are in process or planned. However, OECA will need to
provide specific milestones for completing Recommendations 3 and 4 in its response to this
report. For example, OECA will need to include a specific completion date for establishing a
baseline for the status of compliance with Superfund enforcement instruments in its response for
Recommendation 3. OECA will also need to provide a specific completion date for establishing
a metric for acceptable performance by the Regions in its response for Recommendation 4.
OECA said in its response that the evaluation and recommendations will enhance its ability to
track and evaluate compliance with Superfund enforcement instruments on a national basis.
Until OECA implements corrective actions for Recommendations 1 through 5 they will remain
open in OIG tracking systems.
Region 5 agreed with the recommendation for its action (Recommendation 6) and described
generally responsive corrective actions that are in process or planned. However, Region 5 will
need to provide details on its corrective actions and a milestone for completing the actions in its
response to this report. For example, the Region's response should describe how it has or plans
to verify that all residences with contaminated wells have been connected to municipal water or
provided some other potable water source. The Region's response will also need to include a
specific date for completing this corrective action. In its response, Region 5 commented that
EPA is pursuing a new Superfund Administrative Order requiring work to address the off-site
contamination from the Muskego Landfill Site as suggested by the draft report. Until Region 5
implements corrective actions for Recommendation 6, it will remain open in OIG tracking
systems.
8

-------
Status of Recommendations and
Potential Monetary Benefits
RECOMMENDATIONS
POTENTIAL MONETARY
BENEFITS (In $000s)
Rec.
No.
Page
No.
Subject
Status1
Action Official
Planned
Completion
Date
Claimed
Amount
Agreed To
Amount
Request that the regions input compliance status
data forSuperfund instruments in CERCLIS. Limit
the CERCLIS input for the "In Violation"
designations to issues that meet OECA's definition
for SNC.
Add data fields in CERCLIS to capture dates when
SNC with Superfund instruments was identified and
resolved. Request that the regions input this data
into CERCLIS.
Annually review the CERCLIS compliance data to
monitor Agency status and progress in managing
SNC with Superfund instruments.
Establish parameters or metrics that indicate an
acceptable range of performance or circumstances
requiring explanation.
Monitor Region 5's progress in establishing an
enforceable Superfund instrument for the Muskego
Landfill Site that provides specific response actions
and milestones to address the off-site
contamination issues. If Region 5 is unable to
finalize this Superfund instrument, take appropriate
actions to ensure that enforceable response
actions and milestones to address the
contamination issues are established.
Verify that residences with groundwater wells
contaminated from the Muskego Landfill Site either
have been connected to municipal water or
provided with some other potable water source.
Region 5's verification should include a review of
appropriate sampling data to ensure that all
residential wells contaminated by the site have
been identified. The Region should also visit the
residences with contaminated wells to confirm that
the residents have been provided with potable
water.
Assistant Administrator 03/31/09
forOECA
Assistant Administrator 03/31/09
forOECA
Assistant Administrator
forOECA
Assistant Administrator
forOECA
Assistant Administrator 06/30/08
forOECA
O Administrator for Region 5
1 O = recommendation is open with agreed-to corrective actions pending
C = recommendation is closed with all agreed-to actions completed
U = recommendation is undecided with resolution efforts in progress
9

-------
Appendix A
Details on Scope and Methodology
We conducted this review in accordance with generally accepted government auditing standards.
Those standards require that we plan and perform the review to obtain sufficient, appropriate
evidence to provide a reasonable basis for our findings and conclusions based on our objectives.
At the request of an OECA manager, our work was officially suspended from August to October
2006, to accommodate a heavy workload the regions experienced at the end of the fiscal year.
Our scope generally covered EPA's activities for enforcing Superfund instruments from January
2001 through September 2006. To gain an understanding of EPA's process for enforcing
Superfund instruments, we interviewed managers and staff from OSWER, OECA, Region 5, and
Region 9. We reviewed CERCLA and EPA guidance documents. We also reviewed other
records applicable to EPA's enforcement process and activities for Superfund instruments.
We reviewed CERCLIS information provided by OECA. The CERCLIS data identified the
universe of active administrative orders on consent, consent decrees, and unilateral
administrative orders (i.e., Superfund instruments) for work obligations for sites on the NPL as
of September 30, 2007. The Agency does not maintain national data on violating these
instruments. Therefore, we were not able to identify the universe of violations for these
instruments. We conducted limited testing of the Superfund instrument universe to verify the
accuracy of the data. We compared the site name, Superfund instrument type, and instrument
dates in CERCLIS with supporting records for 12 sites identified by Regions 5 and 9 with
compliance issues during the period from January 2001 through September 2006. Our testing
did not identify any major discrepancies with site names, instrument types, or instrument dates
between the CERCLIS data and supporting records.
The Agency does not maintain national data on violations of these instruments. To assess
regional responses to compliance violations, we reviewed violation information and supporting
response and resolution records we obtained from Regions 5 and 9. We also interviewed
remedial project managers and site attorneys from the two Regions. We conducted these
interviews to gain a complete understanding of the violations and the Regions' responses
addressing the violations. We selected these two Regions primarily to provide geographical
coverage of the central and western United States. These Regions were also selected because
they had the highest number of Superfund instruments, respective to geographical location. Our
review focused on SNC with Superfund instruments that were active as of September 30, 2006.
We reviewed instances of SNC reported to us by Regions 5 and 9. We reviewed all instances of
SNC identified between January 2001 and September 2006 by Region 5 and 9. We excluded
from our review violations related to responsible parties' obligations to pay EPA for Superfund
costs. We also excluded violations involving Federal facility Superfund sites. For Region 5, we
evaluated 5 of the 13 reported violations. Eight of the violations reported by Region 5 were
excluded from review because they involved responsible party payment obligations, were
incorrectly reported as a violation, involved a Federal facility site, or were overturned by a
10

-------
United States court. We evaluated seven out of the nine violations reported by Region 9. Two
of the violations reported by Region 9 were excluded from review because they involved
responsible party payment obligation issues. Our evaluation included reviews of relevant site
documents and Agency correspondence. We also interviewed remedial project managers and
site attorneys.
To assess internal controls, we evaluated the Agency's procedures and records for tracking and
addressing SNC with Superfund instruments. We found that the Agency needs to implement a
national tracking system for SNC with Superfund instruments to provide assurance that EPA is
complying with applicable laws and regulations as communicated in legally binding Superfund
instruments.
The Government Accountability Office (GAO) issued a report entitled EPA Should Do More To
Ensure That Liable Parties Meet Their Cleanup Obligations (GAO-05-658, August 2005). This
report found that EPA was not aggressively enforcing financial assurance requirements in
cleanup orders and agreements. The report made multiple recommendations to the Agency to
improve implementation, management, and enforcement of these requirements. The Agency was
taking corrective actions in response to this report at the time of our review. As a result, we did
not conduct follow-up work on GAO's findings and recommendations.
11

-------
Appendix B
Agency Response to Draft Report and OIG Evaluation
OECA Response to Draft Report
MEMORANDUM
DATE: March 21, 2008
SUBJECT: Response to "Draft Evaluation Report: EPA Cannot Determine the Extent of
Substantial Non-Compliance in Superfund Cleanups; Assignment No. 2006- 01400"
FROM: Catherine R. McCabe /s/
Principal Deputy Assistant Administrator
TO:	Carolyn Copper
Director for Program Evaluation
Hazardous Waste Issues
Office of Inspector General
Thank you for the opportunity to comment on the subject draft report on tracking compliance
with Superfund enforcement instruments. In this memorandum, we will be responding to
Recommendations 1 through 5. Region 5 will be responding under separate cover to
Recommendation 6.
The Office of Enforcement and Compliance Assurance (OECA) believes there was an
open dialogue on this subject and the evaluation and recommendations will enhance OECA's
ability to track and evaluate compliance with Superfund enforcement instruments on a national
level. We would like your office to reconsider the title of this report because we do not believe it
accurately reflects the report's findings. We suggest the report's title be changed to "EPA Needs
to Track Compliance with Superfund Enforcement Agreements Nationally." We are concerned
that the report title may, in itself, generate unnecessary inquiries, and we would prefer to focus
on implementing the OIG's recommendations.
OIG Response
We changed the report title to EPA Needs to Track Compliance with Superfund Cleanup
Requirements.
Before addressing the specific recommendations, I would like to clarify a point made in the
draft report. In the summary, "At a Glance," (What We Found), and on pages 2 and 3, "EPA Has a
Large Universe of Superfund Instruments," it is noted that "EPA had 3,397 active Superfund
instruments for cleanup obligations for sites on the NPL as of September 30, 2007." It should be
12

-------
made clear that this is the number of active Superfund enforcement instruments in CERCLIS and
does not include enforcement instruments for non-NPL actions nor does it include enforcement
instruments for cost recovery. That number may also include enforcement instruments that have
been completed and fully complied with but have not yet been closed out in CERCLIS. We are
currently working with the Regions to close out enforcement actions where all response actions have
been completed and all cost recovery obligations satisfied. Once this effort is complete, we will be
able to determine accurately the total number of active enforcement actions for response (NPL and
non-NPL) and cost recovery.
OIG Response
We revised the statement in the "At a Glance" to read as follows: "According to EPA's
Superfund information system, there were 3,397 active Superfund enforcement instruments to ensure
cleanups at National Priorities List sites as of September 30, 2007." We also clarified the content of
universe of Superfund instruments discussed on pages 2 and 3 by adding the following statements:
"We identified the number of active Superfund instruments from data provided by the Agency
through its Comprehensive Environmental Response, Compensation, and Liability
Information System (CERCLIS or Superfund information system). The number of active
instruments excludes enforcement instruments for sites not on the NPL and instruments
involving responsible party payment obligations." The following footnote was also added on
page 2: "The number of instruments may include enforcement instruments that have been
completed and fully complied with, but have not yet been closed out of CERCLIS.
According to an OECA official, OECA is working with the regions to close out enforcement
actions where all response actions have been completed and all payment obligations have
been satisfied."
With respect to Recommendations 1 through 5, OECA provides the following:
Recommendation 1 - Request that the regions input compliance status data for Superfund
[enforcement] instruments in CERCLIS. Limit CERCLIS "In Violation" designations to issues that
meet OECA's definition of SNC [Substantial Noncompliance],
OECA Response: OECA agrees with this recommendation and has already established two
workgroups to address this issue. The first is comprised of Regional attorneys, enforcement
specialists and Remedial Project Managers (RPMs) and has been charged with defining "Substantial
Noncompliance" (SNC) with respect to Superfund enforcement instruments. In its FY 2000 report,
EPA established a SNC definition, but it was not fully vetted with the Regions and only addressed
SNC with respect to enforcement agreements for response actions. The current workgroup will be
addressing SNC for removal and remedial response actions as well as compliance with cost recovery
actions. We anticipate that this workgroup will complete its work by the first quarter of FY 2009.
We will then issue a guidance outlining the SNC definition, the types of actions for which
compliance monitoring will be required in CERCLIS, and the frequency with which that data should
be reviewed and updated. This workgroup has already had two conference calls and will convene
bi-weekly until it completes its tasks.
13

-------
In addition, we have formed a workgroup comprised of Regional CERCLIS Information
Management Coordinators to identify the system enhancements that will be required to allow
Regions to track and update compliance information in CERCLIS effectively and efficiently. First,
the workgroup will identify changes to the current CERCLIS compliance screens that are necessary
to implement the Inspector General's recommendations. The workgroup will also identify user
requirements to make updating the CERCLIS information more efficient. Though the current
configuration was designed for decentralized data entry directly by RPMs, a number of Regions use
centralized data entry for compliance tracking, including Region 5, and the current system is
cumbersome to update. OECA will work with the Regions and OSWER, the owners of the
CERCLIS data base, to implement these enhancements. The initial enhancements should be
implemented in the second quarter of FY 2009. Until a full requirements analysis is completed,
however, we cannot determine a date for completing the second set of CERCLIS changes to enhance
data entry efficiency. This workgroup has also had two conference calls and will convene bi-weekly
until it has completed its tasks.
OIG Response
OECA's corrective actions in process meet the intent of our recommendation. The
recommendation is open with agreed-to actions pending.
Recommendation 2 - Add data fields in CERCLIS to capture the dates when SNC with Superfund
[enforcement] instruments was identified and resolved. Request that the regions input this data into
CERCLIS.
OECA Response: OECA agrees with this recommendation and will, in modifying CERCLIS, allow
Regions and Headquarters to identify when there is substantial non-compliance with an enforcement
action and when the parties returned to compliance. This will be implemented consistent with the
initial CERCLIS enhancements by the second quarter of FY 2009.
OIG Response
OECA's corrective action in process meets the intent of our recommendation. The
recommendation is open with agreed-to actions pending.
Recommendation 3 - Annually review CERCLIS compliance data to monitor Agency status and
progress in managing SNC with Superfund [enforcement] instruments.
OECA Response: OECA agrees with this recommendation. Once SNC is defined and initial
CERCLIS enhancements are in place, we will pull the CERCLIS data to establish a baseline for the
status of compliance with Superfund enforcement instruments. OECA anticipates this will occur late
in FY 2009, and we will repeat the evaluation annually thereafter.
14

-------
OIG Response
OECA's planned corrective action meets the intent of our recommendation. However, OECA
will need to provide a more specific milestone date for completing the corrective action in its
response to the final report. The recommendation is open with agreed-to actions pending.
Recommendation 4 - Establish parameters or metrics that indicate an acceptable range of
performance or circumstances requiring explanation.
OECA Response: OECA agrees with this recommendation. Once we establish a baseline of
compliance status in FY 2009, we will establish a metric for the range of acceptable performance
and a threshold for when Regions will be required to substantiate why the SNC threshold was
exceeded. This would likely be implemented in FY 2010, once a baseline has been established and
the data evaluated.
OIG Response
OECA's planned corrective action meets the intent of our recommendation. However, OECA
will need to provide a more specific milestone date for completing the corrective action in its
response to the final report. The recommendation is open with agreed-to actions pending.
Recommendation 5 - Monitor Region 5's progress in establishing an enforceable Superfund
enforcement instrument for the Muskego Landfill Sites that provides specific response actions to
address off site contamination. If Region 5 is unable to finalize this Superfund [enforcement]
instrument, take appropriate actions to ensure that enforceable response action and milestones to
address the contamination issues are established.
OECA Response: OECA agrees with this recommendation. It is our understanding that Region 5
has developed an enforcement instrument that meets the requirements outlined by your office to
address the off site contamination at the Muskego Landfill Site. We expect that the Regions actions
will address the OIG's concerns and will be completed by the end of the 3rd quarter of FY 2008. If
the Region is unsuccessful, we will work with them to ensure that an enforcement instrument is in
place as expeditiously as possible.
OIG Response
OECA's planned corrective actions meet the intent of our recommendation. However, OECA
will need to provide a more specific milestone date for completing the corrective actions in its
response to the final report. The recommendation is open with agreed-to actions pending.
Again, we appreciate the opportunity to comment on this draft report. Should you have any
questions or concerns regarding this response, please contact OECA's Audit Liaison, Gwendolyn
Spriggs on 202-564-2439.
15

-------
M. Owen (OIG)
M. Mulkey (OSRE)
E. Gilberg (OSRE)
M. Schneider (OAP)
G. Spriggs (OAP)
M. Gade (Region 5)

-------
Region 5 Response to Draft Report
R-19J
DATE: March 19,2008
SUBJECT: U. S. Environmental Protection Agency, Region 5 Response to the Office of Inspector
General's Discussion Draft Findings for the Report: "EPA Cannot Determine the Extent
of Substantial Non-Compliance in Superfund Cleanups"
FROM: Mary A. Gade /s/ Walter Kovalick for
Regional Administrator
TO: Carolyn Copper
Director for Program Evaluation
Office of Program Evaluation
Office of Inspector General
Thank you for providing the United States Environmental Protection Agency, Region 5 the opportunity to
comment on the Office of Inspector General's (OIG's) Draft Evaluation Report "EPA Cannot Determine
the Extent of Substantial Non-Compliance in Superfund Cleanups," Assignment No. 2006-01400, dated
February 21, 2008. I am responding to issues raised in the report relative to the Muskego Sanitary
Landfill Site (Site) and, specifically, Recommendation #6.
Response to Discussion:
EPA is aware of the issues discussed in the OIG's draft report and has articulated its concerns about the
off-site contamination in past Five-Year Review evaluations. EPA will also be amending the Record of
Decision to modify the required remedial action to ensure that the remedy remains protective of human
health and the environment.
OIG Response
We agree that the Region's 1999 and 2004 five-year review reports articulated concerns about the
off-site contamination and included recommendations associated with those concerns. However, as
discussed in the draft report, the Region had not established requirements for the responsible party
to address the contaminated groundwater that has migrated from the site at the time of our review.
The Region's plan to amend the Record of Decision is a needed step towards establishing a remedy
for the off-site contamination that provides long-term protection to human health and the
environment.
In the past, EPA approached the potentially responsible parties (PRPs) to undertake the additional work
under the existing 1995 Unilateral Administrative Order (UAO). Those PRPs performed the remedial
actions required under that UAO to address on-site groundwater contamination. The PRPs denied that
the additional work was required under the UAO, but agreed to conduct further sampling and
investigation. Off-site contamination was not identified in the Remedial Investigation/Feasibility Study
(RI/FS) and was not discovered until after the on-site groundwater remedy was constructed. In addition,
EPA believed all potentially impacted residents were connected to a public drinking water source.
In December 2007, EPA received a revised Expanded Groundwater Monitoring Report from the PRPs,
which included a listing of all private well locations and all municipal drinking water hookups in the study
area as requested by EPA. With the revised Expanded Groundwater Monitoring Report, EPA has a much
17

-------
better understanding of the contamination plume, the complex hydrogeology in the area, and the potential
vulnerability of residential and municipal wells in the area.
EPA is pursuing a new Superfund Administrative Order requiring additional work including specific
response actions and milestones to address off-site contamination as the OIG's draft report suggests.
Specifically, EPA will issue a notice letter inviting the PRPs to negotiate a Consent Order to perform work
identified in a detailed scope of work. If the PRPs will not enter an agreement within 45 days of receipt of
the notice letter, EPA will consider other options including, but not limited to, funding the final phase of the
off-site groundwater investigation. Whether under an enforcement lead or fund-lead action, the final
necessary sampling will be performed in 2008. EPA will then have a complete supplemental Rl for the
off-site groundwater contamination and will identify and evaluate remedial alternatives for off-site
groundwater contamination at the Site before the close of 2008.
OIG Response
The Region's recent response actions that are in process and actions planned should assist EPA with
obtaining a complete remedial investigation of the off-site groundwater contamination. These actions
should also assist the Region with assuring that a remedy is selected and implemented that provides
long-term protection to human health and the environment.
Response to Recommendation #6
Recommendation #6 stated:
"Verify that residences with groundwater wells contaminated from the Muskego Landfill Site either have
been connected to municipal water or provided some other potable water source. The Region's
verification should include a review of appropriate sampling data to ensure that all residential wells
contaminated by the site have been identified. The Region should also visit the residences with
contaminated wells to confirm that the residents have been provided potable water."
EPA's Response:
Based upon recent information provided to and developed by EPA, we now have an inventory of all wells
in the area that are used for potable purposes and that may be vulnerable to contamination. EPA is
currently verifying all municipal well hook-ups. EPA has also required the PRPs to increase the sampling
frequency of the municipal and residential wells. Depending on the location and potential vulnerability of
the well, some wells are sampled more frequently than others (e.g., monthly, quarterly and annually).
The draft report also correctly notes that contamination has migrated toward Muskego municipal water
supply well #7. EPA has required the PRPs to monitor that well and wells in its vicinity to make sure that
well #7 continues to be a safe water supply for the City of Muskego. In addition to monthly sampling of
well #7 and surrounding monitoring wells, EPA has required additional pumping tests to improve our
understanding of the local hydrogeology and modeling. This will allow EPA to develop a supplemental
feasibility study to assure the protection of well #7 and residential wells in the area.
We believe that our ongoing sampling efforts have assured the safety of all residential wells, and we have
recently initiated another round of drinking water well sampling to further verify and confirm that all
residential drinking water wells remain safe for use. If a well is contaminated above safe levels, bottled
water will be provided by the PRPs. Municipal water lines may also be extended, as they have been in
the past, until a long-term solution can be found. These actions, along with EPA's enforcement and
response strategy, will ensure a solution to these complex problems. Additional remedial investigations
will support a supplemental Feasibility Study, which will identify and evaluate alternatives to assure long-
term protection of any off-site residents and of the municipal well. EPA Region 5 will also keep our Office
of Site Remediation Enforcement apprised of our progress and timetables.
18

-------
OIG Response
Region 5's corrective actions are in process and plan to meet the intent of our recommendation. In its
response to the final report, the Region will need to provide more specific details describing how it has
verified or plans to verify that all residences with contaminated wells have been connected to
municipal water or some other potable water source. The Region will also need to provide a
milestone, or milestones, for completing the corrective actions. The recommendation is open with
agreed-to actions pending.
Again, we appreciate the opportunity to comment on this draft report. If you have any additional
questions, please feel free to contact Sheri L. Bianchin, Remedial Project Manager, at (312) 886-4745 or
Thomas Krueger, Associate Regional Counsel, at (312) 886-0562.
cc: Granta Nakayama, Assistant Administrator, Director, Office of Site Remediation & Enforcement
Marcia Mulkey, Director, Office of Site Remediation & Enforcement
Michael Owen, OIG, Region 10
Jessica Knight, OIG, Region 9
Elliot Gilberg, Deputy Director, Office of Site Remediation & Enforcement
Patricia Mott, Office of Site Remediation & Enforcement
Melissa Gibbons, Office of Site Remediation & Enforcement
Bruce Pumphrey, Office of Site Remediation & Enforcement
Mike Northridge, Office of Site Remediation & Enforcement
Eric Levy, Region 5 Audit Coordinator
Thomas Krueger, Region 5
Larry Kyte, Region 5
Leverett Nelson, Region 5
Richard C. Karl, Region 5
Douglas Ballotti, Region 5
Thomas Short, Region 5
Donald Bruce, Region 5
Jatinder Singh, Region 5
Sheri L. Bianchin, Region 5
19

-------
Appendix C
Distribution
Office of the Administrator
Assistant Administrator, Office of Enforcement and Compliance Assurance
Assistant Administrator, Office of Solid Waste and Emergency Response
Principal Deputy Assistant Administrator, Office of Enforcement and Compliance Assurance
Principal Deputy Assistant Administrator, Office of Solid Waste and Emergency Response
Director, Office of Regional Operations
Regional Administrator, Region 5
Regional Administrator, Region 9
Office of General Counsel
Associate Administrator for Congressional and Intergovernmental Relations
Associate Administrator for Public Affairs
Agency Followup Official (the CFO)
Agency Followup Coordinator
Audit Followup Coordinator, Office of the Administrator
Audit Followup Coordinator, Office of Enforcement and Compliance Assurance
Audit Followup Coordinator, Office of Solid Waste and Emergency Response
Audit Followup Coordinator, Region 5
Audit Followup Coordinator, Region 9
Deputy Inspector General
20

-------