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Catalyst for Improving the Environment
EPA Should Clarify and
Strengthen Its Waste Management
Oversight Role With Respect to
Oil Spills of National Significance
Report No. 11-P-0706
September 26, 2011
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Report Contributors: Carolyn Copper
Jill Trynosky
Heather Drayton
Barry Parker
Denise Rice
Meghan Wilson
Abbreviations
ACP
Area Contingency Plans
E&P
Exploration and production
EPA
U.S. Environmental Protection Agency
FOSC
Federal on-scene coordinator
NCP
National Contingency Plan
NRF
National Response Framework
OIG
Office of Inspector General
OSC
On-scene coordinator
OSWER
Office of Solid Waste and Emergency Response
POTW
Publicly owned treatment works
RCRA
Resource Conservation and Recovery Act
UAC
Unified Area Command
UIC
Underground injection control
Cover photos: From left: Oil collected in plastic bags and put into containers for landfill
disposal; decontamination area and pressure washers at the Bayou Chico
Decontamination Area in Pensacola, Florida. (EPA photos)
Hotline
To report fraud, waste, or abuse, contact us through one of the following methods:
e-mail: OIG Hotline@epa.gov write: EPA Inspector General Hotline
phone: 1-888-546-8740 1200 Pennsylvania Avenue NW
fax: 703-347-8330 Mailcode 8431P (Room N-4330)
online: http://www.epa.aov/oia/hotline.htm Washington, DC 20460
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THE INSPECTOR GENERAL
September 26, 2011
MEMORANDUM
SUBJECT: EPA Should Clarify and Strengthen Its Waste Management
Oversight Role With Respect to Oil Spills of National Significance
Report No. ll-P-0706
FROM: Arthur A. Elkins, Jr
Inspector General
TO: Mathy Stanislaus
Assistant Administrator for Solid Waste and Emergency Response
This is our report on the subject evaluation conducted by the Office of Inspector General (OIG)
of the U.S. Environmental Protection Agency (EPA). This report contains findings that describe
the problems the OIG has identified and corrective actions the OIG recommends. This report
represents the opinion of the OIG and does not necessarily represent the final EPA position.
Final determinations on matters in this report will be made by EPA managers in accordance with
established resolution procedures.
The estimated direct labor and travel costs for this report are $309,366.
Action Required
We defer to the Agency on recommendation 2. The recommendation is in a closed status for
reporting purposes; therefore, you do not need to respond further regarding this recommendation.
The Agency disagreed with recommendations l.a. and 3—which were revised in response to
Agency comments—and did not provide a clear statement of agreement or disagreement with
recommendation l.b. The Agency provided an acceptable corrective action plan for
recommendation I.e., but did not provide milestone dates or a planned completion date.
Recommendations 1 and 3 are unresolved with resolution efforts in progress. Therefore, in
accordance with EPA Manual 2750 regarding unresolved recommendations, you are required to
provide a written response to recommendations 1 and 3, including a proposed corrective action
plan for agreed-to recommendations or proposed alternative actions for recommendations l.a.,
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l.b., and 3, and a planned completion date for recommendation I.e., within 90 calendar days of
the report date.
Your response will be posted on the OIG's public website, along with our memorandum
commenting on the response. The response should be provided as an Adobe PDF file that
complies with the accessibility requirements of Section 508 of the Rehabilitation Act of 1973, as
amended. Please e-mail your response to Carolyn Copper at copper.carolvn@epa.gov. The final
response should not contain data that should not be released to the public; if the response
contains such data, the data for redaction or removal should be identified. We have no objections
to the further release of this report to the public. We will post this report to our website at
http://www.epa.gov/oig.
If you or your staff have any questions regarding this report, please contact Wade Najjum at
(202) 566-0827 or naiium.wade@epa.gov, or Carolyn Copper at (202) 566-0829 or
copper.carolyn@epa.gov.
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EPA Should Clarify and Strengthen Its
Waste Management Oversight Role With
Respect to Oil Spills of National Significance
11-P-0706
Table of Contents
Chapters
1 Introduction 1
Purpose 1
Background 1
Noteworthy Achievements 5
Scope and Methodology 5
2 EPA Demonstrated Leadership in Oversight of
Waste Management Activities 7
EPA Oversight Provided Assurance in Uncertain and
Massive Spill Environment 7
Conclusion 11
3 EPA Action on Lessons Learned Can Help Ensure
Future Success in Oil Spill Waste Management 12
EPA Needs Better Waste Management Guidance for
Spills of National Significance 12
EPA Can Improve Performance During Spills of National Significance
With Additional Planning 13
EPA Oversight Did Not Include All Affected States and Facilities 14
Some EPA Actions Regarding the E&P Waste Caused
Confusion and Frustration 16
Conclusion 19
Recommendations 20
Agency Comments and OIG Evaluation 21
Status of Recommendations and Potential Monetary Benefits 22
Appendices
A Agency Response to Draft Report and OIG Comment 23
B Distribution 44
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Chapter 1
Introduction
Purpose
The purpose of this review was to evaluate the effectiveness of U.S.
Environmental Protection Agency (EPA) oversight of BP America Production
Company's waste management plans and activities during the Gulf Coast oil spill.
Our objective was to determine whether plans and activities for tracking and
transporting oil-contaminated waste effectively provided a full accounting of the
volume and disposition of waste.
Background
On April 20, 2010, Deepwater Horizon, an offshore rig drilling oil for BP,
exploded approximately 50 miles off the coast of Louisiana. The explosion and
fire on the rig sank Deepwater Horizon and damaged the oil wellhead. The rig's
damaged oil wellhead was fitted with a blowout preventer; however, it failed to
function properly. On April 24, the first leaks from the well were reported. Large
quantities of oil began spilling into the Gulf of Mexico, leading the U.S.
Department of Homeland Security to designate the event as the first "Spill of
National Significance" on April 29. One week later, on May 7, oil was discovered
on the Louisiana shoreline; oil would later appear on the coasts of Alabama,
Florida, Mississippi, and, to a lesser extent, Texas. By the time the damaged oil
wellhead was capped on July 15, an estimated 4.9 million barrels1 of oil had been
released into the Gulf of Mexico.
Waste Streams and Disposal
The response effort generated a number of different waste streams. These
included oil and water mixtures, tar balls, oiled vegetation and debris, and oiled
response equipment such as oiled boom and safety gear used by response
workers.2 After being collected from cleanup operations, waste was sent to
transfer locations, also known as staging areas, operated by BP contractors in
Louisiana, Alabama, Mississippi, Florida, and Texas. Liquid oil waste was placed
in underground injection control (UIC) wells, sent for reuse or disposed of in
publicly owned treatment works (POTW) facilities. Waste material in solid form
was either sent to landfills for disposal or, to a lesser extent, recycled. Figure 1
1 Estimated by the Flow Rate Technical Group and the Department of Energy and cited in Oil Budget Calculator:
Deepwater Horizon, November 2010, http: //www. re store the gulf, gov. The Office of Solid Waste and Emergency
Response has indicated that there is an ongoing investigation into the number of barrels spilled.
2 The oil spill waste stream also included animal carcasses. The U.S. Fish and Wildlife Service and/or state fish and
wildlife agencies were responsible for collecting and counting animal carcasses recovered during the oil spill
response.
11-P-0706
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shows the flow of oil spill waste and materials from the point of origin to final
disposition, with the scope of this Office of Inspector General (OIG) evaluation
shown in blue.
Figure 1: Solid and liquid oil spill waste flow
Origination
Waste Stream
Some liquid
Staging Area/
Treatment Facility
directly to
or disposal
facilities.
Final
Disposition
Skimmed oil
Skimmed
water
Offshore Recovery Operations
(Skimming and Boom)
Onshore staging
Solid wastes are
sent to approved
landfill
Onshore Recovery Operations
(Beach Cleanup)
Oil recycled and sent
to market
Decanted and
returned to Gulf
under approved
Coast Guard and
state directives
Solid waste and
oily solids
Vessel municipal waste,
oily containment boom,
oily absorbent boom,
skimmed oil
Concentrated emulsion
loaded to barge and
transported to onshore
treatment facility for
separation
Water and liquid
wastes are treated and
discharged to POTW
and/or NPDES3 facility,
or is deep-well
injected at permitted
facility
Source: OIG analysis of Unified Area Command Gulf-Wide Recovered Oil/Waste Management
Plan, 2010.
a National Pollutant Discharge Elimination System
The amount of waste collected on a monthly basis generally began to decline after
October 2010. Waste from the oil spill continues to be collected and as of June
19, 2011, more than 626 million pounds of waste had been disposed of on land.3
The volume of this waste could have filled 83.2 football fields 3 feet deep. The
bulk of this waste was collected in Louisiana and Alabama.
Unadulterated crude-oil-contaminated waste from the Gulf Coast oil spill was
exempted from Resource Conservation and Recovery Act (RCRA) Subtitle C
federal hazardous waste regulations under a 1988 regulatory determination.4 This
exemption is referred to as the oil and gas exploration and production (E&P)
waste exemption, and it applies to wastes derived from primary oil E&P
3 This amount and other oil waste totals in this report do not include animal carcasses, oil burned off the surface of
the water, oil that dispersed from the spill site, or any other oil spilled that was not collected and brought to land for
disposal.
4 Regulatory Determination for Oil and Gas and Geothennal Exploration, Development and Production Wastes,
53 Fed. Reg. 25446-25454 (July 6, 1988).
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operations (as opposed to transportation and manufacturing operations). As a
result of EPA's determination, solid wastes that meet the E&P exemption from
federal hazardous waste regulations are regulated as nonhazardous solid waste,
predominantly by state and local governments. EPA does not typically become
directly involved in the management or oversight of solid wastes, including E&P
waste disposal. An EPA guidance document titled Exemption of Oil and Gas
Exploration and Production Wastes from Federal Hazardous Waste Regulations,
issued in 2002, provides information on how to determine whether a solid waste is
covered by the E&P exemption, examples of wastes that are covered and not
covered by the E&P exemption, and clarifications on misunderstandings about the
E&P exemption.
Oil Spill Response Guidance and Procedures
The National Oil and Hazardous Substances Pollution Contingency Plan (NCP)
provides federal agencies with the organizational structure and procedures for
preparing for and responding to discharges of oil and releases of hazardous
substances, pollutants, and contaminants. The National Response Team, chaired
by EPA and composed of multiple federal agencies, may propose changes to the
NCP to improve the effectiveness of the national response system. The NCP
designates EPA and Coast Guard roles and responsibilities. The Director for the
Office of Emergency Management serves as EPA's representative/chair to the
National Response Team; the Coast Guard serves as vice-chair5. Developed by
Area Committees, Area Contingency Plans (ACPs) contain location-specific
procedures for responding to discharges and are implemented in conjunction with
the NCP and the Regional Contingency Plan. The ACPs are reviewed by Regional
Response Teams.
The NCP outlines several waste management guidelines that ACPs should
address, including:
• The sampling, testing, and classifying of recovered oil and oiled debris
• The segregation, temporary storage, and stockpiling of recovered oil and
oiled debris
• Prior state disposal approvals and permits
• The routes, methods, and sites for the disposal of collected oil, oiled
debris, and animal carcasses
• Procedures for obtaining waivers, exemptions, or authorizations associated
with handling or transporting waste materials
In addition, per the NCP, ACPs may also contain a hierarchy of preferences for
disposal alternatives, with recycling (reprocessing) being the most preferred, and
5 During response actions, however, the chair of the National Response Team is provided by the agency that
provides the on-scene coordinator. Therefore, during the Gulf Coast oil spill response, the Coast Guard provided
both the federal on-scene coordinator (see page 4) and the chair for the National Response Team.
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what disposal requirements are mandatory or may not be waived during the
response.
The National Response Framework (NRF), developed by the U.S. Department of
Homeland Security, with input from federal partners and other stakeholders,
provides principles that enable response partners to prepare for and provide a
unified national response to domestic incidents. Under the Oil and Hazardous
Materials Response Annex (Emergency Support Function #10), the NRF includes
actions to prepare for and respond to oil and other hazardous materials discharges.
These actions are consistent with those outlined in the NCP, which is an
"operational supplement" to the NRF.6
BP and Federal Government Roles in Cleanup
The U.S. Coast Guard National Pollution Fund Center, responsible for
administering the Oil Spill Liability Trust Fund, designated two BP subsidiaries
and five other companies as responsible parties for Gulf Coast oil-spill-related
claims, including costs the government incurred associated with the spill response
and cleanup. The NCP designates the Coast Guard as the lead response agency for
spills within or threatening coastal zones, whereas EPA leads the response to
spills that occur in inland zones. Under RCRA, EPA has the authority to mandate
cleanup activities in cases of imminent and substantial danger to the environment
or public health. During this response, however, EPA saw no need to invoke this
authority.
The Coast Guard established a federal on-scene coordinator (FOSC)7 to lead the
Unified Area Command (UAC), whose members included EPA, other federal
agencies, and BP. The BP Unified Area Commander served as the responsible
party's counterpart to the FOSC. The Coast Guard, as the lead agency of the
response, and EPA, as a support agency, provided oversight and assistance to BP
to ensure timely and protective oil spill waste management.
To provide oversight of BP's waste management activities, in June 2010, the
Coast Guard, with EPA concurrence, issued waste management directives to BP.
These directives required BP to submit waste management plans and certain
deliverables to be approved by the Coast Guard, and to report information on the
amount and characteristics of the waste on BP's website. The directives also
required BP to allow EPA access to facilities where waste would be stored or
disposed of, so that EPA could oversee waste management activities. According
to the EPA Administrator, the directives created "enforceable requirements,
implementation procedures, and oversight plans related to BP's handling of waste
6 "Emergency Support Function #10-Oil and Hazardous Materials Response Annex," January 2008, p. 2,
http://www.fema. gov.
7 An FOSC is a predesignated federal official, in this case the Coast Guard, who oversees the oil spill response
effort. The FOSC is responsible for providing access to federal resources, providing technical assistance, and
coordinating the efforts of federal, local, and private parties.
11-P-0706
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materials."8 Also in June 2010, the Coast Guard, EPA, and the involved states
approved BP's waste management plans for Louisiana, and the combined plan for
Alabama, Mississippi, and Florida. In October 2010, BP's final waste
management plan, which covered all affected states and allowed for some state-
specific management activities, was approved by the federal and state oversight
agencies.
Noteworthy Achievements
During the Gulf Coast oil spill and response, EPA, as a support agency to the
Coast Guard, worked to ensure that its federal presence was apparent and its
response activities, as well as BP's waste management activities, were
transparent. EPA's efforts to accomplish these goals included reviewing waste
management plans, planning and conducting visits to staging areas and landfills,
reviewing waste reports, sampling waste for hazardous characteristics, and
creating a special section on its website for the Gulf Coast oil spill response.9 The
waste management page of EPA's website included the waste management plans,
the waste management directives, site visit plan and results, and EPA's waste
sampling strategy and results.
Scope and Methodology
We conducted our review in accordance with generally accepted government
auditing standards. Those standards require that we plan and perform the
evaluation to obtain sufficient, appropriate evidence to provide a reasonable basis
for our findings and conclusions. We believe that the evidence obtained provides
a reasonable basis for our findings and conclusions based on our evaluation
objectives. We performed our review from November 2010 to July 2011.
We conducted our review at EPA headquarters and in Regions 4 and 6. Region 4
includes Alabama, Florida, and Mississippi, and Region 6 includes Louisiana and
Texas. These regions were involved in planning and implementing waste
management oversight in response to the oil spill. We interviewed staff at all
levels of the response, including headquarters senior staff and an official in the
Office of Solid Waste and Emergency Response (OSWER), senior staff in the
Office of General Counsel, and staff in the Office of Enforcement and
Compliance Assurance. In the regions, we interviewed on-scene coordinators
(OSCs), Response Support Corps members, and RCRA staff, and in Region 6, we
interviewed staff from the regional Office of Water and a regional official.
We identified stakeholders from non-EPA agencies and organizations that played
a part in waste management activities. We interviewed the incident FOSC and
8 "Testimony of Lisa P. Jackson, Administrator U.S. Environmental Protection Agency, Before the Subcommittee
on Commerce, Justice, Science, and Related Agencies, Committee on Appropriations, United States Senate,"
July 15, 2010, http://www.epa.gov/ocir/hearings/testimonv/lll 2009 2010/2010 0715 li.pdf.
9 "EPA Response to BP Spill in the Gulf of Mexico," http://www.epa.gov/BPSpill.
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other Coast Guard staff at UAC, BP environmental staff and a contractor at UAC,
and state environmental agency staff in Louisiana and Alabama. In addition, we
interviewed site managers at a staging area and a landfill in Louisiana, as well as a
parish president in Louisiana. We chose these locations based on the high
volumes of oil-contaminated waste staged or disposed of there.
We reviewed the following criteria to determine EPA's planned waste
management activities:
• Federal regulations and guidance for contingency planning
• Waste management directives and letters issued by the FOSC
• BP's waste management plans and waste tracking reports
• Pollution removal funding authorizations
• EPA's plans for waste management oversight, as described in documents
obtained from its website and in testimony by the EPA Administrator.
We then reviewed the staging area and landfill site visit and sampling reports
from EPA, Louisiana Department of Environmental Quality, and Alabama
Department of Environmental Management. We reviewed those reports to
determine whether EPA's planned activities matched its actual activities, and to
compare EPA's activities with the states' activities. Our interviews and review of
internal communications from EPA Region 4, Region 6, and headquarters, as well
as the states, supplemented our analysis of these documents.
The scope of this evaluation is limited to EPA's waste management oversight and
activities from the point when waste was brought to a staging or decontamination
area to its final disposition. EPA played a role in shoreline and beach cleanup
operations, but these activities were not identified by the Coast Guard or EPA as
waste management activities and therefore fall outside of the scope of this review.
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Chapter 2
EPA Demonstrated Leadership in Oversight of
Waste Management Activities
For the Gulf Coast oil spill, EPA initiated oversight activities that went beyond its
typical activities in less significant oil spills. To ensure that waste from the oil
spill was safely and appropriately disposed of, EPA helped shape BP's waste
management plans, conducted assessments of staging areas and landfills, sampled
waste, and kept the public informed of its activities and results. The increased
federal oversight of BP's waste management activities was not designed to
independently account for the full volume and disposition of waste produced.
However, EPA's oversight did provide additional transparency and increase
measures to protect the environment and public health.
EPA Oversight Provided Assurance in Uncertain and Massive Spill
Environment
In interviews with the OIG,
EPA officials and
management cited several
reasons for EPA's increased
oversight of BP's waste
management activities
during the Gulf Coast oil
spill response, including the
magnitude of the event, the
need to address public
concerns regarding the
waste, and the impact of
dispersants. A January 2011
recommendation given by
the President's National
Commission on the BP
Deepwater Horizon Oil Spill
and Offshore Drilling called
for an increase in
government oversight.
Specifically, the commission
recommended that EPA and the Coast Guard establish distinct plans and
procedures for responding to a Spill of National Significance. As part of that
recommendation, the report stated, "Increase government oversight of the
responsible party, based on the National Contingency Plan's requirement that the
The Deepwater Horizon Oil Spill is a
massive and potentially unprecedented
environmental disaster that has already
impacted the lives and the livelihoods of
countless people in the Gulf Coast region.
While BP is a responsible party for this
oil spill, EPA has been working alongside
many federal and state agencies to
implement emergency oil spill response
actions since day one of the incident. . . .
EPA will continue to take a proactive and
robust role in monitoring, identifying,
and responding to potential public health
and environmental concerns.
-Lisa Jackson, EPA Administrator, Testimony
before the United States Senate, Committee on
Environment and Public Works, May 18, 2010
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government 'direct' the response where a spill poses a substantial threat to public
health or welfare."10
According to the NCP, the lead agency may request the support of other federal
agencies to assist with tasks within their expertise. However, during the Gulf
Coast oil spill response, EPA initiated response planning before funding
reimbursement procedures were initiated by the Coast Guard. An EPA senior
manager said in an interview that BP's initial waste management plans, written
before the spill occurred, were limited in detail and inadequate. EPA, as well as
the Coast Guard, realized that more detailed and comprehensive plans were
needed. EPA also realized that, compared with other oil spill responses, more
EPA staff with waste management skills and knowledge were needed to ensure
that BP's waste management plans were adequate.
BP's Waste Management Plans
To create enforceable waste management plans, the Coast Guard, with EPA's
concurrence, issued directives to BP outlining the requirements for BP's plans.
EPA, along with the Coast Guard and the relevant states, then reviewed BP's
initial waste management plans prior to the Coast Guard approving them. The
directives required BP to continually update its website with:
• The volume of disposed waste
• The locations of staging areas, landfills, and other disposal or waste
recovery facilities
• The volume of waste going to each disposal or recovery facility
• Updates to the list of approved facilities
• Results of all waste sampling
In addition, the Coast Guard-issued waste management directives included a
provision that BP shall allow EPA, its representatives, authorized state agencies,
and/or contractors access to all staging areas; transfer stations; decontamination
stations; and recycling, reuse, and disposal facilities used to treat or store waste
generated from the oil spill. At these sites, EPA was authorized to assess, sample,
and inspect any oil and oil-contaminated solid and liquid wastes recovered during
the cleanup. All sites where these wastes would be staged, treated, or disposed of
would also be subject to all applicable federal, state, and local laws.
EPA's Waste Management Oversight Activities
EPA's oversight activities did not include procedures to independently track the
transportation, volume, and disposition of the oil spill waste. However, part of
BP's transparency requirement, established by the waste management directives,
10 National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling Report to the President,
Deep Water: The Gulf Oil Disaster and the Future of Offshore Drilling, January 2011, p. 268.
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was for it to develop a tracking system specifying the amounts of waste collected
and to post online the locations of staging areas and disposal facilities. EPA
regions ensured that BP was complying with this requirement by reviewing the
waste volume reports and the information BP posted on its website. EPA regions
also worked with BP to ensure consistency in the way volumes were reported.
When BP initially tracked solid waste by volume in one region and mass in
another, EPA requested that BP provide consistent units of measure (mass) for all
waste. BP complied with this request.
Prior to the issuance of waste management directives, EPA had started some of its
waste management oversight activities, including landfill and staging area
assessments. From May 27 to June 12, 2010, EPA regional staff and/or EPA
contractors conducted initial assessments of each landfill. These assessments
determined whether landfills were capable of handling the oil spill waste and were
in compliance with applicable regulations and laws. Before BP finalized its list of
approved landfills, EPA sought to identify any potential issues, looking at past
compliance histories, status of current permits, and landfill design and capacity,
as well as the existence of any community concerns.
EPA further ensured compliance at the landfill and staging area facilities by
developing a Staging/Decontamination Area and Landfill Site Visit Plan. This
plan stated that EPA
would conduct site visits
to each landfill twice a
month and to each
staging and
decontamination area
once a week. For the
most part, site visits were
conducted according to
EPA's plan. In a few
instances in which the
site did not receive oil
spill waste materials or
when there was a tropical
storm, the visit was not
conducted. EPA regional
staff and/or EPA
contractors visited over 190 staging areas and decontamination sites from June 28
to October 4, 2010, and a total of 22 landfills from July 21 to September 29, 2010.
These landfills and staging areas were located in Louisiana, Alabama,
Mississippi, and Florida.
EPA developed assessment checklists for site visits that included items such as
addressing any on-site spills of oily waste and ensuring that storage containers
were lined and covered. EPA response staff then communicated any problems
EPA inspecting waste containers at staging areas in
August 2010. (EPA photo)
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they observed with site managers and followed up with managers and state
environmental departments to make sure these problems were adequately
addressed. Completed checklists, as well as summary reports of EPA's site visits,
were posted on EPA's website. State environmental departments also maintained
an almost daily presence at staging area, decontamination, and landfill sites,
reporting on the compliance status of facilities as well as volumes of waste. EPA
regional staff reviewed these reports to provide an additional level of oversight.
BP wastes (non-oil-contaminated trash and debris, and crude-contaminated debris) on the
Springhill Landfill, Cambellton, Florida. (EPA photo)
EPA also developed a sampling plan to independently sample the waste and
ensure that it was properly characterized. The plan detailed the tests to be
performed, the frequency of testing, and where sampling would occur. The
directives, issued by the Coast Guard, required that BP conduct regular sampling
and make the results publicly available. Preliminary results of EPA's testing of
oily debris, tar balls, mousse oil, and other petroleum waste streams showed only
chemical constituents that are usually found in petroleum products. According to
EPA's website, independent sampling of waste only resulted in one toxicity
characteristic exceedance. This exceedance was for benzene, a hazardous
constituent that was detected at a level above the threshold for EPA's toxicity
characteristic regulation. These results, when posted on EPA's website, provided
transparency and gave assurance that the waste was being handled properly.
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Conclusion
Although EPA was not the lead federal agency during this response, EPA
identified activities that would improve existing waste management plans and
procedures, and ensured that appropriate precautions were taken with the waste.
EPA's waste management oversight activities were not designed to provide, nor
were they required to provide, an independent, full accounting of the volume and
disposition of the oil spill waste. EPA took a leadership role to inform and
oversee BP's oil spill waste management activities and ensure that these activities
were transparent and protective of human health and the environment.
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Chapter 3
EPA Action on Lessons Learned Can Help Ensure
Future Success in Oil Spill Waste Management
Despite EPA's leadership and success in conducting oversight of the Gulf Coast
oil spill waste management activities, EPA fell short of its own goals in some
instances. While EPA has waste management expertise and worked to oversee
BP's waste management activities, it had to implement new response and
oversight tools for this nationally significant spill. Waste management plans and
oversight procedures were developed and finalized as the response progressed,
potentially diverting resources to planning that could have been used to strengthen
the response effort. EPA's oversight did not include all affected states and
disposal facilities. In addition, EPA's testing regime and recommendation for
disposal of E&P waste were a departure from its own guidance on the handling of
E&P waste. This departure, as well as a lack of sufficient justification from EPA
officials and management, created some confusion and frustration among EPA,
Coast Guard, and BP staff. EPA can build on its response success in this oil spill
by creating improved, formal guidance to be used in future oil spills.
EPA Needs Better Waste Management Guidance for Spills of National
Significance
Because the Gulf Coast oil spill occurred in the coastal zone, the NCP designated
the Coast Guard as the lead federal agency, and EPA was designated as a
supporting agency by the Coast Guard FOSC. The NRF, which describes the
national approach for responding to domestic incidents, also provides additional
information on the responsibilities of the lead agency during oil spill responses.11
However, neither the NCP nor the NRF outlines specific waste management
oversight roles for EPA when it is not the lead agency during a response. These
guidelines instead leave it up to the FOSC—in this case the Coast Guard—to
request additional support as needed from supporting agencies. The NCP also
allows the government to designate an oil spill as nationally significant, but
beyond naming a National Incident Commander, this designation does not
activate any additional procedures, as the President's commission points out in its
report on the Gulf Coast oil spill.12
Supplementing the NCP, ACPs contain location-specific procedures for
responding to discharges. However, at the time of the Gulf Coast oil spill, EPA
and its federal partners had not adequately updated waste management guidelines
11 Specifically, "Emergency Support Function #10—Oil and Hazardous Materials Response Annex," of the NRF.
12 National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling Report to the President,
Deep Water: The Gulf Oil Disaster and the Future of Offshore Drilling, January 2011, p. 261.
11-P-0706
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in relevant ACPs. EPA, as the chair of the National Response Team,13 may
provide support to all Regional Response Teams by reviewing ACPs and ensuring
consistency with national policies on emergency response.
Multiple ACPs cover the affected Gulf states, and all of these plans include some
waste management planning. None, however, contain all of the required or
optional guidance14 as outlined in the NCP. For example, several of the ACPs
contain checklists for addressing the sampling and classifying of waste, but only
one identifies a hierarchy of preferences for disposal alternatives. None of the
ACPs contains a complete list of the routes, methods, and sites for disposal of oil-
contaminated waste. Additionally, two of these plans have sections for sample
waste management plans, but these sections are blank. EPA can initiate more
comprehensive and consistent planning for waste management oversight during
oil spills by ensuring that the guidelines set forth by the NCP are complete in
ACPs.
EPA Can Improve Performance During Spills of National Significance
With Additional Planning
EPA has over 30 years of experience in waste management, including its response
activities related to debris removal after Hurricane Katrina, which provides it with
a high degree of expertise in this area. Stemming from its RCRA program
responsibilities, EPA provides technical assistance and guidance to state agencies
in charge of solid waste management, and it has access to state and local officials
responsible for maintaining environmental and human health protection at landfill
and staging areas. With the number of staging areas and landfills involved in the
Gulf Coast oil spill cleanup, EPA was well positioned to coordinate the waste
management oversight operations. However, no plans or guidance had been
developed in advance to outline what EPA's role would be in this area for coastal
Spills of National Significance.
While the NCP allows for flexibility in determining response-specific procedures,
EPA's lack of prior planning for Spills of National Significance, as well as the
absence of complete waste management planning in the ACPs, may have led to
some inefficiencies. Time had to be taken to develop waste management
directives and finalize waste management plans during the oil spill. The Coast
Guard, with the concurrence of EPA, issued a waste management directive for
Louisiana, and a joint directive for Alabama, Mississippi, and Florida, near the
end of June 2010, more than a month after oil first hit the Louisiana shoreline and
13 According to the NCP, the National Response Team is responsible for national response and preparedness
planning, coordinating regional planning, and providing policy guidance and support to the Regional Response
Teams. The National Response Team consists of representatives from designated agencies with a representative
from EPA and the Coast Guard serving as the chair and vice chair, respectively. Regional Response Teams are
responsible for regional planning and preparedness activities before response actions, and for providing support to
the OSC when activated during a response.
14 See "Background" in chapter 1 for a description of the required or optional guidance outlined in the NCP.
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waste began to be generated. These directives required BP to add more detailed
information to their two existing waste management plans (one for Louisiana and
one for Alabama, Mississippi, and Florida). A Gulfwide plan was issued in
October 2010, the same week EPA stopped its oversight of landfills and staging
areas. Some UAC staff suggested that the extensive revisions to the plan required
resources that could have been used elsewhere in the response.
EPA's role as a supporting agency to the Coast Guard may have created
additional inefficiencies. According to a senior EPA official, it was efficient for
EPA to work directly with BP on activities such as developing the waste
management plans and day-to-day operations. However, while EPA could advise
the Coast Guard on waste management directives to BP, it could not issue them
directly.
A Coast Guard senior official stated that EPA was instrumental in developing the
waste management directives and plans, as well as offering guidance on
community concerns, waste monitoring, and waste sampling. In letters written by
the Coast Guard FOSC and addressed to BP in July 2010, the FOSC advised BP
to respond to EPA's comments regarding the waste management plans and timely
posting of waste management information and data on BP's website.
EPA could further enhance its performance during nationally significant
responses by establishing an agreed-upon exit strategy. Toward the end of the
response, EPA and the Coast Guard did not have agreement on when EPA would
end its presence at UAC. Consequently, a Coast Guard official suggested that
EPA's physical presence at UAC ended too soon and may have contributed to
some inefficiency. Meanwhile, EPA management stated that EPA staff at UAC
did not have a sufficient amount of work. Additionally, some EPA responders felt
that EPA conducted independent waste sampling and landfill and staging area
visits for too long based on the consistent characteristics of the waste streams.
Without established criteria for demobilizing its activities, EPA could either leave
UAC too early or use resources unnecessarily by staying too long.
EPA Oversight Did Not Include All Affected States and Facilities
EPA fell short of its own oversight goals, set out in the Administrator's testimony
and statements on its website, by not including all involved states and facility
types in some of the waste management plans and activities. EPA was diligent in
visiting and assessing the landfills and staging areas used to dispose of and
transport waste from the oil spill. However, it did not consistently visit or assess
any other type of disposal facility. An EPA responder explained that, in EPA's
opinion, health and environmental impacts at staging areas and landfills were of
more concern to communities than the impacts at other types of disposal facilities.
While BP's waste management plans included all states where oil spill waste was
collected and disposed of, not all affected states were included in the waste
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management directives and EPA's on-site assessments. The directives included
Louisiana, Alabama, Mississippi, and Florida, but did not include Texas and
Oklahoma, states that also accepted oil spill waste and materials. According to the
Chief of OSWER's Waste Characterization Branch, Texas was not included in the
directives because, initially, Texas was not expected to receive BP spill waste.
However, Texas landfills, to a lesser extent than the landfills in Alabama, Florida,
Louisiana, and Mississippi, did receive some waste. EPA visited landfills and
staging and decontamination sites in Louisiana, Mississippi, Alabama, and
Florida, but did not visit any Texas sites. EPA explained that it did not visit Texas
staging areas and landfills because they were not in use during the time EPA was
conducting site visits. Oklahoma was not included in the directives but received
material for recycling.
During the response, EPA did not visit or assess liquid waste disposal facilities.
As shown in figure 2, liquid oil waste (liquid and oily liquid) accounted for
approximately 64 percent of the collected oil waste. This type of waste includes
oil and water mixtures or emulsions such as liquid from skimming and recovery
operations. Liquid waste also includes water that has minor amounts of oil mixed
with it, such as from
Figure 2: Percentages of cumulative waste and
materials,3 June 2011
1%
43%
30%
5%
Liquid
i Oily liquid
Solid
i Oily solid
Recyclables and
recoverables
decontamination, storm
water, or treated water. It
was disposed of in either
UIC wells or POTW
facilities. EPA stated that
it omitted these facilities
from its visits because
UICs and POTWs are
heavily regulated by the
states and, after
communicating with the
states, EPA decided that
additional oversight was
unnecessary.
21%
Source: BP, Weekly Waste Tracking Cumulative Report by
Manifest Source, Report for Week of 06/13/2011-06/19/2011,
http://www.bp.com.
a "Waste and materials" refers to materials sent for disposal
or recycling on land.
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Workers pressure wash used oil boom. (EPA photo)
In addition to omitting liquid waste disposal facilities from its review, EPA did
not visit or assess any recycling facilities. In BP's waste management plans, as
well as in the NCP, recycling was listed as a preferable disposal option. Yet,
compared to other methods of disposal, recycling accounted for the lowest
volume of waste (a little over 1 percent of the 626 million pounds of waste
collected) and was slow to get underway. When asked about the oversight
omission for recycling facilities, EPA stated that materials sent for recycling are
not considered to be waste, and EPA's oversight activities were confined to waste
materials.
Some EPA Actions Regarding the E&P Waste Caused Confusion and
Frustration
The majority of waste generated from the Gulf Coast oil spill was exempted from
federal hazardous waste regulations under the E&P exemption. Solid wastes that
are covered by the E&P exemption are predominately regulated by state and local
governments. However, during the Gulf Coast oil spill, EPA conducted
independent sampling of the oil-contaminated waste to give additional assurance
that it would be handled properly. During the response, EPA developed an
internal question and answer document, designed as a summary response to legal
questions that arose as a result of the Gulf Coast oil spill. The document was
intended to provide brief responses as an aid to senior officials. According to an
EPA senior manager, this document was used internally to justify the testing of
the E&P waste, but we did not find evidence that it was widely shared or
communicated beyond senior management recipients. In addition to testing the oil
spill waste, EPA recommended disposal actions that some responders considered
a departure from its general E&P guidance.
Although EPA regional response staff followed EPA's waste management
oversight plans for the Gulf Coast oil spill, many responders we interviewed were
critical of some of EPA's actions. Confusion and frustration, as well as
differences of opinion among some EPA, Coast Guard, and BP responders,
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hinged on three novel EPA-recommended procedures for characterizing and
managing oil-contaminated waste: (1) EPA's independent waste sampling at and
repeated site assessments of landfills and staging areas, (2) additional sampling
and reporting required of BP, and (3) EPA's request that any waste that failed a
toxicity test15 be disposed of as hazardous waste.
Regarding the first two points of departure—waste testing, and repeated
assessments and additional BP sampling and reporting—EPA senior managers
explained that EPA's independent testing was done to address concerns regarding
the magnitude of the event and the use of dispersants. Nonetheless, EPA and
UAC responders stated that EPA's regulations do not require this additional
testing. EPA's 2002 guidance on E&P waste states that it is the operator's
(e.g., BP's) responsibility to determine whether waste is subject to hazardous
waste regulations. Several EPA responders, including oil spill OSCs, told us that
they were not aware of EPA ever having taken samples of oil spill waste prior to
this spill. Operators are also not typically required to conduct sampling to the
extent BP was required to do so by the waste management directives. While state
responders conducted landfill and staging area inspections in coordination with
EPA, one of the two states we spoke with was unaware of the extent to which
EPA was testing the waste. Some responders we spoke with stated that a written
statement from EPA regarding the E&P exemption may have lessened some of
the confusion.
The third point of departure—EPA's recommendation for disposing of the
waste—also generated criticism from EPA and UAC responders. According to the
2002 E&P guidance, E&P-exempt waste that is mixed with a nonexempt
characteristic hazardous waste may lose its exemption if the mixture exhibits
hazardous characteristics of the nonexempt waste. If the mixture exhibits
hazardous characteristics of the exempt waste, however, the waste will still be
exempt. While the use of dispersants—a nonexempt waste—created the potential
for a mixture to occur, EPA recommended that any oil spill waste that failed a
toxicity test be disposed of as hazardous waste. However, EPA's 2002 guidance
does not speak to how to dispose of exempt waste that fails a toxicity test.
Several responders at EPA, the Coast Guard, and BP did not believe that EPA
could require BP to dispose of E&P-exempt waste as hazardous, even if it failed a
toxicity test. EPA's internal guidance on the Gulf Coast oil spill waste did not
offer justification for disposing of E&P waste as hazardous waste. Ultimately, BP
and the Coast Guard did not agree to EPA's waste disposal recommendation, and
BP included language in its waste management plans that requested alignment
with EPA's 2002 guidance.
Overall, we found no evidence that the confusion, frustration, and differences of
opinion regarding the disposal and testing of E&P waste negatively impacted the
waste management aspects of the spill response. However, in one instance,
15 Specifically, the Toxicity Characteristic Leaching Procedure test for volatiles, semivolatiles, and metals.
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uncertainty regarding how to appropriately dispose of E&P exempt waste that
failed a toxicity test led to a delay in disposing of a tank full of a skimmed oil and
water mixture. From July 28 to September 22, 2010, this tank was stored at a
staging area while several rounds of samples were taken to determine whether the
mixture exhibited a benzene exceedance. The samples returned conflicting results,
and EPA advised the Coast Guard that the "prudent approach" would be to
dispose of the mixture in a UIC well designed to handle hazardous waste. A BP
contractor then disposed of it in a well designed to handle industrial waste.
Example of a frac tank used to help oil and water separate. (EPA photo)
In an interview, a Coast Guard official stated that he likely spent 40 hours dealing
with this one container of waste. He noted that this was a considerable amount of
time to spend on a small amount of waste that was E&P exempt. It took 56 days
for this container of waste to be disposed of—11 days longer than the maximum
45 days allowed for containers to be stored at staging areas, as specified by BP's
waste management plan. In addition, a UAC representative pointed out that the
container used to store the waste in question could not be used for further cleanup
activities during this time. Although the lack of consensus in this matter resulted
in only one delay, the event points to a lack of consensus and clear guidelines for
how to dispose of E&P waste that fails the toxicity test.
Moreover, while transparency was an issue of foremost importance to EPA during
the response, it delayed posting information about this container of waste on its
website. EPA updated its spill response activities—including waste management
oversight—on its Gulf Coast Oil Spill Response website; however it took EPA
almost 4 months to post information about the benzene exceedance. This
information, along with data from the samples, was posted on EPA's website on
January 19, 2011.
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Conclusion
The additional sampling conducted by
both EPA and BP provided assurance
regarding the proper handling and
disposition of the waste. However, the
lack of a definitive statement from EPA
and a lack of clear internal
communications on the E&P waste
exemption resulted in a lack of buy-in
among EPA regional staff, the Coast
Guard, and BP regarding some of
EPA's waste management activities.
This gap in communication on EPA's
rationale for decisions about handling
E&P waste, as well as the delay in
posting sample results, demonstrates a
lack of transparency in EPA actions on
this matter.
A consistent and sufficiently justified message is necessary to ensure that EPA
staff, as well as the regulated community, are fully knowledgeable of the
necessity for additional oversight and testing of oil spill waste during future
nationally significant spill events. A description of EPA's role and responsibility
as a supporting agency in offshore Spills of National Significance, along with
waste management plans in ACPs that cover all required guidelines under the
NCP, would allow for a more efficient response in the future. Some of the
obstacles EPA encountered could be avoided in the case of future Spills of
National Significance by seeking increased clarification on waste management
oversight in the NCP and enhancing its own planning for an event of this
magnitude.
In its 2011-2015 strategic plan, EPA has recognized that it needs to review the
BP Gulf Coast oil spill disaster, as well as its current practices. The plan states:
Given the Deepwater Horizon BP oil spill and the efforts to clean
up and restore the Gulf of Mexico, EP A will review its current
rules, guidelines and procedures on oil spills. EPA will ensure that
it has the appropriate tools to prevent, prepare for, respond to, and
recover from such incidents within its jurisdiction.
New NCP guidance to "add distinct plans and procedures for Spills of National
Significance"16 should capture EPA's lessons learned from this event, streamline
16 National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling Report to the President,
Deep Water: The Gulf Oil Disaster and the Future of Offshore Drilling, January 2011, p. 261.
I think thai one of the lessons
learned from this is that in this
idea of a unified command, we
are directing them /BP/ to do
things and we are working to
get a job done, but we have a
different responsibility as
government agencies to make
sure we do that with
transparency. . . .
—Lisa Jackson, EPA Administrator,
Testimony before the House
Transportation and Infrastructure
Committee, May 19, 2010.
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future response efforts, and designate clear lines of authority. EPA's oversight
activities could have been more complete by including all states in the directives
and all types of disposal facilities in its assessments. EPA can further assure its
success in responding to future Spills of National Significance by updating its
guidance on management of E&P waste. It can also provide more transparent and
complete communication to responders and the oversight community on EPA
opinions in this area.
Recommendations
We recommend that the Assistant Administrator for Solid Waste and Emergency
Response:
1. From lessons learned in response to this Spill of National Significance:
a. Work with other federal partners to determine whether the
NCP and NRF should be updated to include processes for
waste management oversight in response to nationally
significant oil spills, including EPA's role as a supporting
agency in offshore spills.
b. Work with other federal partners to complete guidance for
waste management oversight in ACPs.
c. Develop a model waste management plan and a waste
oversight framework that includes:
i. provisions for including all states and facilities
involved in the response,
ii. definition of roles and responsibilities for all
authorized responders, and
iii. an exit strategy for decommissioning waste
management oversight activities.
2. To the extent needed, seek additional authorities from the lead agency
to perform waste management oversight in offshore Spills of National
Significance.
3. Update EPA's 2002 guidance on the E&P waste exemption to include
circumstances under which E&P waste could be managed or disposed
of differently, including during applicable oil spills. Incorporate into
any lessons-learned review a discussion of EPA opinions and
procedures for overseeing and handling waste from this spill, including
those wastes subject to the E&P exemption.
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Agency Comments and OIG Evaluation
We reviewed OSWER's comments and made changes to the report and
recommendations as appropriate. Appendix A provides the full text of OSWER's
response and the OIG's comments.
We defer to OSWER on recommendation 2 and we consider that recommendation
closed upon issuance of this report. Recommendations 1 and 3 are unresolved
with resolution efforts in progress.
OSWER agreed with recommendation I.e. and provided an acceptable corrective
action plan, but did not provide milestone dates or a planned completion date.
OSWER stated that it will develop a model waste management plan. In addition,
it already has a guidance document and website where it will include a model
waste management plan for a coastal Spill of National Significance and any
additional guidance developed by EPA.
OSWER did not agree with recommendations l.a. and 3. We revised both
recommendations in response to Agency comments. For recommendation l.b.,
OSWER did not provide a clear statement of agreement or disagreement.
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Status of Recommendations and
Potential Monetary Benefits
POTENTIAL MONETARY
RECOMMENDATIONS BENEFITS (In $000s)
Planned
Rec. Page Completion Claimed Agreed To
No. No. Subject Status1 Action Official Date Amount Amount
1 20 From lessons learned in response to this Spill of U Assistant Administrator for
National Significance: Solid Waste and Emergency
a. Work with other federal partners to determine Response
whether the NCP and NRF should be
updated to include processes for waste
management oversight in response to
nationally significant oil spills, including
EPA's role as a supporting agency in
offshore spills.
b. Work with other federal partners to complete
guidance for waste management oversight in
ACPs.
c. Develop a model waste management plan
and a waste oversight framework that
includes:
i. provisions for including all states and
facilities involved in the response,
ii. definition of roles and responsibilities
for all authorized responders, and
iii. an exit strategy for decommissioning
waste management oversight activities.
20 To the extent needed, seek additional authorities
from the lead agency to perform waste
management oversight in offshore Spills of
National Significance.
2q Update EPA's 2002 guidance on the E&P waste
exemption to include circumstances under which
E&P waste could be managed or disposed of
differently, including during applicable oil spills.
Incorporate into any lessons-learned review a
discussion of EPA opinions and procedures for
overseeing and handling waste from this spill,
including those wastes subject to the E&P
exemption.
Assistant Administrator for 09/01/11
Solid Waste and Emergency
Response
Assistant Administrator for
Solid Waste and Emergency
Response
1 O = recommendation is open with agreed-to corrective actions pending
C = recommendation is closed with all agreed-to actions completed
U = recommendation is unresolved with resolution efforts in progress
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Appendix A
Agency Response to Draft Report and OIG Comment
(Received September 1, 2011)
MEMORANDUM
SUBJECT: Response to OIG Draft Evaluation Report, "EPA Should Clarify and Strengthen
Its Waste Management Oversight Role With Respect to Oil Spills of National
Significance," Project No. OPE-FY10-0028, July 15, 2011
FROM: Mathy Stanislaus
Assistant Administrator
TO: Arthur Elkins, Jr.
Inspector General
Office of Inspector General
We appreciate the opportunity to comment on the Office of Inspector General (OIG) draft
evaluation report: "EPA Should Clarify and Strengthen Its Waste Management Oversight Role
With Respect to Oil Spills of National Significance," Project No. OPE-FY 10-0028, dated July
15, 2011. We worked with OECA, OGC, and Regions 4 and 6 to prepare this response to the
draft evaluation report.
The Deepwater Horizon (DWH) Oil Spill was an unprecedented event requiring an extraordinary
response. The IG recognized that EPA's oversight activities provided additional transparency
and ensured that waste from the oil spill was safely and appropriately disposed. The report,
however, would be improved through clarifications to two key areas: EPA's role in a coastal spill
response and the application of EPA's hazardous waste regulations for exploration and
production (E&P) wastes.
As a supporting agency to the Coast Guard, EPA conducted waste management activities
throughout the course of the spill and for a time following the capping of the well. EPA
collected, analyzed and posted data on its website regarding waste management activities to
provide assurance to affected communities and other interested parties that oil-contaminated
waste was properly managed and disposed. EPA reviewed and approved BP's waste
management plans, conducted assessments of landfills and staging and decontamination areas,
accounted for the volume and disposition of the waste, performed independent waste sampling,
assessed community impacts (Environmental Justice analyses) and engaged in community
outreach to keep the public informed of EPA's waste management activities. Throughout the
course of the DWH response, EPA rapidly adapted and responded to ever-changing conditions
and challenges to ensure the protection of human health and the environment.
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Recommendation l.a.: OIG recommends that the Assistant Administrator for Solid Waste and
Emergency Response work with other federal partners to update the NCP and National
Response Framework to include processes for waste management oversight in response to
nationally significant oil spills, including EPA's role as a supporting agency in offshore spills.
Response: EPA disagrees that additional processes for waste management oversight are needed
for the National Oil and Hazardous Substances Contingency Plan (NCP) or the National
Response Framework (NRF). EPA believes that adequate authorities exist. The NCP discusses
waste management specifications for Subpart D - Operational Response Phases for Oil Removal.
The NCP says that "oil and contaminated materials recovered in cleanup operations shall be
disposed of in accordance with the Regional Contingency Plan (RCP), the Area Contingency
Plan (ACP) and any applicable laws, regulations or requirements. Regional Response Team
(RRT) and Area Committee guidelines may identify the disposal options available during an oil
spill response and may describe what disposal requirements are mandatory or may not be waived
by the On Scene Coordinator (OSC). The ACPs may identify a hierarchy of preferences for
disposal alternatives, with recycling (reprocessing) being the most preferred, and other
alternatives preferred based on priorities for health or the environment. (40 CFR § 300.31(c)).
The current process, where the Federal On-Scene Coordinator (FOSC) requests support through
the RRT or National Response Team (NRT), is the appropriate mechanism for EPA involvement
in a coastal spill of national significance (SONS). The Coast Guard is fully aware of and
understands EPA capabilities, including waste management support. During the DWH response,
EPA effectively provided assistance and recommendations working as a support agency to the
Coast Guard. EPA believes that the existing system worked well during the DWH response.
OIG Response: EPA has left out the introductory sentence to recommendation 1, which specifies
that EPA's actions in response to recommendations l.a., l.b., and I.e. are intended to be "from
lessons learned in response to this Spill of National Significance."
We have modified recommendation La. in our final report. However, we also note that, in response
to recommendation 5 in OIG Report No. 1 l-P-0534, Revisions Needed to National Contingency Plan
Based on Deepwater Horizon Oil Spill, August 25, 2011, EPA stated that it will work with federal
partners to review this response and the NCP to address lessons learned and to develop guidance for
Spills of National Significance. We believe that guidance on waste management oversight should be
included in this review and that EPA could respond to recommendation La. through corrective
actions underway for recommendation 5 in the OIG's August 25, 2011, report.
Regarding EPA's role as a support agency during coastal Spills of National Significance, the NRF
includes a description of roles for other supporting agencies in other functions; however, it does not
specify roles for EPA when it is a supporting agency in the function of waste management. In
addition, while EPA may believe the Coast Guard is aware of and understands EPA capabilities,
including waste management support, the EPA's support capabilities are not formally outlined. In our
opinion, documentation of EPA's capabilities and specific support functions would be a more
effective management control for effective and efficient responses. Based on the experiences of the
Coast Guard, EPA, and other federal agencies during this response, developing guidance that
includes lessons learned from waste management activities will help enhance the efficiency and
effectiveness of future responses.
(Continued on next page)
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(Continuedfrom previous page)
The recommendation is unresolved with resolution efforts in progress. In its 90-day response to this
report, EPA should provide an update on the resolution status and, if the recommendation is agreed
to, provide estimated milestones for completion.
Recommendation l.b.: OIG recommends that the Assistant Administrator for Solid Waste and
Emergency Response work with other federal partners to complete guidance for waste
management oversight in ACPs.
Response: During the DWH response, EPA recognized that a coastal SONS could likely require
adjusting pertinent guidance. EPA has the flexibility to modify guidance, therefore EPA will
review existing waste management guidance to determine whether it needs to be modified to
better apply to a coastal SONS. Based upon the results of that review, EPA will take the
appropriate actions. If the guidance is revised, EPA will work with other federal partners,
through the RRTs, to assist ACs in addressing waste management oversight in ACPs. However,
the application of waste management guidance for a coastal SONS would be subject to the
review of Coast Guard, in conjunction with the RRT.
OIG Response: In this report, we identify gaps in the ACPs that cover the Gulf states affected
by this oil spill. All of these plans include some waste management planning. None, however,
contain all of the required or optional guidance as outlined in the NCP. For example, several of
the ACPs contain checklists for addressing the sampling and classifying of waste, but only one
identifies a hierarchy of preferences for disposal alternatives. None of the ACPs contains a
complete list of the routes, methods, and sites for disposal of oil-contaminated waste.
Additionally, two of these plans have sections for sample waste management plans, but these
sections are blank. We continue to recommend that guidance for waste management oversight in
the ACPs should be completed or updated. Because EPA's response to recommendation l.b. is
not a clear statement of agreement or disagreement, this recommendation has been designated
unresolved with resolution efforts in progress. In its 90-day response to this report, EPA should
provide an update on the resolution status and, if the recommendation is agreed to, provide
estimated milestones for completion.
Recommendation I.e.: OIG recommends that the Assistant Administrator for Solid Waste and
Emergency Response develop a model waste management plan and a waste oversight fi'amework
that includes: i.) provisions for including all states andfacilities involved in the process; ii.)
definition of roles and responsibilities for all authorized responders; and, Hi.) an exit strategy for
decommissioning waste management oversight activities.
Response: EPA agrees with this recommendation to develop a model waste management plan.
In, addition, as noted in Recommendation l.b., EPA will determine whether it needs to modify
any waste management guidance as it relates oversight. OSWER has already prepared a
guidance, "Planning for Natural Disaster Debris (PNDD)," March 2008, which captures lessons
learned from our response to Hurricane Katrina and other natural disasters. This guidance
provides a framework for the development of incident-specific waste management plans, which
can be applied to any disaster. This guidance discusses waste management and recycling
approaches for state and local emergency planners/managers to use in planning for debris
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transportation, treatment, and disposal from any natural disaster. We applied this guidance in
reviewing BP's waste management plans. The Federal Emergency Management Agency
(FEMA) was involved in the review process for this guidance and the guidance is consistent with
FEMA's Debris Management Guidance. This guidance is available at:
http://www.epa.gov/osw/conserve/rrr/imr/cdm/pubs/pndd.pdf.
Second, OSWER has created a website that focuses on "Waste Management for Homeland
Security Incidents" at: http://epa.gov/waste/homeland/. This website includes a wealth of waste
management information for emergency managers and planners and covers all types of disasters.
This website was developed as part of EPA's ongoing waste management efforts under
Homeland Security Presidential Directives, as well as the National Response Framework. Many
of these efforts have been undertaken jointly with other federal and state agencies. The model
waste management plan for a coastal SONS and any additional guidance developed by EPA
(Recommendation l.b.) that would modify or amend existing waste management oversight
guidance for application to a coastal SONS would be posted to this website.
OIG Response: EPA agreed to the recommendation. We acknowledge EPA's efforts to prepare
for waste management activities in the event of a natural disaster or homeland security incident.
In the attached comments, EPA itself notes that it is inappropriate to compare the response to this
oil spill with the Agency's response to Hurricane Katrina because the Hurricane Katrina was a
Stafford Act response, not a CWA Section 311 response, and EPA plays a different role in
Stafford Act responses than in CWA Section 311 responses in the coastal zone. In addition, the
purpose of the guidance document, Planning for Natural Disaster Debris, is described as a tool
for local communities to use. We also did not learn of the document during our initial research
efforts and it is unclear the extent to which EPA responders referred to the document during this
response. In terms of the "Waste Management for Homeland Security Incidents" website, the
website should clearly indicate that, in addition to homeland security incidents, it will also
contain information on waste management oversight guidance applicable to a coastal Spill of
National Significance so that those seeking the information can easily find it. EPA should also
consider whether there is another website specific to oil spills where it would be appropriate to
place a model waste management plan.
Because EPA did not provide a planned completion date, this recommendation is unresolved
with resolution efforts in progress. In its 90-day response to this report, EPA should include
estimated milestone dates and a planned completion date, or confirm its completion of this
recommendation.
Recommendation 2: OIG recommends that the Assistant Administrator for Solid Waste and
Emergency Response to the extent needed, seek additional authorities from the lead agency to
perform waste management oversight in offshore spills of national significance.
Response: EPA believes it has sufficient authority to perform waste management oversight,
therefore, EPA does not believe it is necessary to seek additional authorities from the lead
agency. The Coast Guard is aware of the expertise that EPA can provide. The role of a
supporting agency is clearly defined, and EPA believes we can provide effective assistance in the
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support agency role during an event in which the Coast Guard designates the FOSC. See the
response to Recommendation l.a.
OIG Response: We disagree that the role of the supporting agency is clearly defined; however,
our intent for this recommendation was for EPA to determine whether it needed additional
authorities to perform waste management oversight in offshore Spills of National Significance.
We raised the issue to EPA management and while we continue to believe the supporting
agency role is not clearly defined, we defer to the Agency's decision. Because EPA has
determined that it does not need additional authorities, we consider this response to be
completed and closed upon issuance of the report.
Recommendation 3: OIG recommends that the Assistant Administrator for Solid Waste and
Emergency Response update EPA's 2002 guidance to include EPA opinions and procedures for
overseeing waste fi'om this spill and circumstances under which E&P waste coirfd be managed
or disposed of differently.
Response: EPA disagrees with the recommendation to update the 2002 guidance on E&P
waste ("Exemption of Oil and Gas Exploration and Production Wastes from Federal Hazardous
Waste Regulations"). This guidance serves a very specific purpose: to guide regulators and the
regulated community in determining which wastes generated at oil and gas production operations
are regulated as hazardous waste under RCRA. Developing procedures for managing and
disposing of wastes from oil spills raises fundamentally different issues. Depending on the origin
of the spill, the E&P exemption may not apply to oil spill wastes (for example, crude oil spilled
from a tanker in transport would not be subject to the E&P exemption). Therefore, the E&P
guidance would not be an appropriate place to address these issues.
OIG Response: We recognize that the E&P exemption does not apply to all oil spills, and we
are recommending that EPA update the guidance only as it applies to the E&P exemption. We
have not found any other comprehensive E&P guidance written by EPA for the purpose of
clearly communicating to regulators and the regulated community. Therefore, this guidance
represents an opportunity for EPA to demonstrate transparency by discussing possible exceptions
and/or departures from general procedures during oil spills and other circumstances.
Details on how EPA, as a support agency, responded to this Spill of National Significance,
including actions taken to oversee waste management activities, should be preserved to assist
future response efforts. We agree that, as the 2002 E&P guidance is a general guidance
document, it may not be the appropriate place to discuss EPA opinions and procedures for the
Gulf Coast oil spill. Therefore, we have revised the recommendation in the final report to have
EPA incorporate into its lessons-learned review a discussion of EPA's opinions and procedures
for overseeing and handling waste from this spill, including waste subject to the E&P exemption.
The recommendation is unresolved with resolution efforts in progress. In its 90-day response to
this report, EPA should provide an update on the resolution status and, if agreed upon, provide
estimated milestones for completion.
Also please find attached our specific comments on the draft report that address concerns that
require your attention and consideration. Should you have any questions, please contact Dana
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Tulis, in the Office of Emergency Management at (202) 564-8600. We appreciate your efforts
and your consideration of our comments as you develop the final report.
Attachment
cc: Barry Breen, OSWER
Lisa Feldt, OSWER
Suzanne Rudzinski, ORCR/OSWER
Sandra Connors, ORCR/OSWER
Lawrence Stanton, OEM/O SWER
Dana Tulis, OEM/OSWER
Cynthia Giles, OECA
Adam Kushner, OCE/OECA
Elliott Gilberg, OSRE/OECA
Scott Fulton, OGC
Mary Kay Lynch, OGC/SWERLO
A1 Armendariz, Region 6
Sam Coleman, Region 6
John Blevins, Region 6
Carl Edlund, Region 6
Gwendolyn Keyes-Fleming, Region 4
Dee Stewart, Region 4
Franklin Hill, Region 4
Carolyn Copper, OIG
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Specific Comments on Report Findings:
At a Glance, under "What We Found":
1.) First Paragraph, Beginning of First Sentence; Replace "Within EPA's limited scope of
responsibility, its oversight of the Gulf Coast oil spill..with "EPA was a support
agency to the Coast Guard, the lead federal agency responsible for designating the
Federal On-Scene Coordinator (FOSC) during the Deepwater Horizon (DWH) oil spill.
Within EPA's scope of responsibility as a support agency, its oversight of the Deepwater
Horizon (DWH) oil spill..."
OIG Response: This sentence was modified in our final report to clarify that EPA was a support
agency to the Coast Guard.
2.) First Paragraph, End of First Sentence; Replace "disposed of properly" with "disposed of
in a manner protective of human health and the environment." (To reflect that the
directives were made pursuant to the FOSC's authority under the Clean Water Act
(CWA) Section 311).
OIG Response: As written, "disposed of properly" is an appropriate, summary-level statement
for the first sentence in the "At a Glance" section. Additional information on the protection of
human health and the environment appears later in the same paragraph as well as in the chapter
sections of the report.
3.) First Paragraph, Second Sentence; Insert "as well as expectations" Between "waste
management activities" and "during the Gulf Coast oil spill" (to reflect that EPA did
more than provide input into waste directives but gave broader-based input and
recommendations to the FOSC).
OIG Response: The sentence provides an appropriate, summary-level description for the "At a
Glance" section. Additional information on EPA's waste management oversight activities
appears in the chapter sections of the report.
4.) First Paragraph, Last Sentence; Add "spill" between "was the first" and "to be
designated."
OIG Response: An insertion of the word "spill" is not needed in this sentence.
5.) Second Paragraph, First Sentence; Replace "significant spills" with "Spills of National
Significance."
OIG Response: This sentence was modified in our final report.
6.) Second Paragraph, Second Sentence; Add "for waste exempt from RCRA's Subtitle C
hazardous waste regulations" between "in place" and "at the time of the spill."
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OIG Response: The sentence provides an appropriate, summary-level description for the "At a
Glance" section. Additional information on the exemption appears in the chapter sections of the
report.
7.) Second Paragraph, Third Sentence; Replace "response plans" with "waste management
plans in Area Contingency Plans (ACPs)."
OIG Response: The sentence provides an appropriate, summary-level description for the "At a
Glance" section. Additional details on the completion status of the ACPs appear in the chapter 3
of the report.
8.) Second Paragraph, Fifth Sentence; As described elsewhere, EPA did not act in a manner
different than provided by guidance. In this case, EPA made recommendations based on
the magnitude and nature of the spill response. See comments 15 -19 under the section
titled, Chapter 3 - EPA Action on Lessons Learned Can Help Ensure Future
Success on Oil Spill Waste Management.
OIG Response: No change is needed. The EPA guidance document, Exemption of Oil and Gas
Exploration and Production Wastes from Federal Hazardous Waste Regulations, issued in 2002,
provides information on the basic rules for determining whether a waste is exempt. During the
Gulf Coast oil spill, EPA decided that the oil spill waste should be managed in a manner
different than provided by this guidance.
Chapter 1 - Introduction
1.) Page 1, Purpose, First Paragraph, First Sentence; In the first sentence, reference is made
to the "BP America Production Company's Gulf Coast oil spill," and elsewhere in the
report the oil spill is referred to as the "Gulf Coast oil spill," the "BP spill," and the
"Deepwater Horizon oil spill". There should be some consistency established in
terminology when referring to the oil spill. The spill should be referenced as the
"Deepwater Horizon (DWH) oil spill."
OIG Response: This sentence was modified in the final report to prevent misreading. We
consistently use the term "Gulf Coast oil spill" in our report, and no further modification is
needed.
2.) Page 1, Background, First Paragraph, Last Sentence; The statement is made that "an
estimated 5 million barrels of oil" were spilled by BP. The quantity of oil spilled is in
dispute and is a litigable issue as part of the government's enforcement action filed in
December 2010 against BP and other responsible parties. The quantity spilled is also a
key element for liability and is an express penalty factor under Section 311 of the CWA.
Because this is a matter that is currently before the court as part of the government's
enforcement action, it would be inappropriate for the IG to be making independently
representations regarding the quantity spilled (a view shared by the Department of
Justice). This reference should be deleted or rephrased, with proper source citations
provided (e.g., "By the time that the damaged oil wellhead was capped on July 15, 2010,
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[insert number of barrels] millions of barrels of oil were estimated by [insert source
providing the estimation] have been released into the Gulf of Mexico").
OIG Response: A footnote has been added in our final report citing the reference we used and
noting the ongoing investigation into the number of barrels spilled, as OSWER requested in OIG
Report No. 1 l-P-0534, Revisions Needed to National Contingency Plan Based on Deepwater
Horizon Oil Spill.
3.) Page 1, Background, First Paragraph; This paragraph should be revised to clearly state
that because the DWH oil spill occurred in the coastal zone, a Coast Guard official was
designated as the Federal On-Scene Coordinator (FOSC) to coordinate and direct the
response action. In addition, because the spill was classified by the Coast Guard as a
"spill of national significance," another Coast Guard official was designated as the
National Incident Commander. EPA's role as a support agency to the Coast Guard for
this spill should also be made clear in this paragraph.
OIG Response: This comment refers to the organization of this section of the report rather than
the content. The additional information requested appears on page 3 and 4 of the report. No
modifications are needed.
4.) Page 1, Waste Streams and Disposal, First Paragraph, Fourth Sentence; Generally
POTW is referred to as "Publicly Owned Treatment Works." The abbreviations page and
page 1 use "Publically..."
OIG Response: The spelling was modified in our final report.
5.) Page 1, Waste Streams and Disposal, First Paragraph Fifth Sentence; "Solid waste" is a
defined term in RCRA. Under RCRA, "solid waste" includes liquid wastes. Replace
"solid waste and materials" with "waste material in solid form."
OIG Response: This sentence was modified in our final report.
6.) Page 2, Waste Streams and Disposal, Second Full Paragraph, Second Sentence; Replace
"This determination" with "This exemption from Subtitle C regulations."
OIG Response: This sentence was modified in our final report. "Subtitle C regulations" is
referenced in the previous sentence and does not need to be repeated here.
7.) Page 3, Waste Streams and Disposal, Top of Page, Carryover Sentence; Replace "E&P
wastes may be treated as solid wastes, and states have approval to manage them" with
"solid wastes that meet the E&P exemption from federal hazardous waste regulations are
regulated as nonhazardous solid waste, predominately by state and local governments."
OIG Response: This sentence has been modified in our final report.
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8.) Page 3, Waste Streams and Disposal, Top of Page, First Complete Sentence; Replace
"management or oversight of E&P waste disposal" with "management of solid waste."
OIG Response: This sentence has been modified in our final report.
9.) Page 3, Waste Streams and Disposal, Top of Page, Between First and Second Complete
Sentence; The following sentence should be added; "EPA's role in solid waste
management includes setting national goals, providing leadership and technical
assistance, and developing guidance and educational materials."
OIG Response: The scope of this paragraph is limited primarily to a description of the oil and
gas exploration and production waste exemption. Information regarding EPA's role in solid
waste management appears in chapters 2 and 3 of the report.
10.) Page 3, Waste Streams and Disposal, Top of Page, Third Complete Sentence; This
sentence should be deleted or clarified - the statement that, "The states involved in the
Gulf Coast oil spill response have authority to manage nonhazardous waste, including
E&P waste" incorrectly suggests that states have exclusive authority. E&P waste is
exempted from federal hazardous waste regulations, but EPA retains statutory
enforcement authorities and the FOSC has independent response authority under CWA
Section 311.
OIG Response: This sentence was deleted from our final report.
11.) Page 3, Waste Streams and Disposal, Top of Page, Fourth Complete Sentence; Replace
"provides information on the basic rules for determining whether a waste is exempt" with
"provides background on the E&P exemption, information on how to determine whether
a solid waste is covered by the E&P exemption, examples of wastes that are covered and
not covered by the E&P exemption, the status of E&P waste mixtures, and clarifications
on common misunderstandings about the E&P exemption."
OIG Response: This sentence was modified in our final report. The scope of this section is
limited to a brief summary of the E&P exemption and the guidance document, and therefore, this
level of detail is not necessary here. However, we have included a few of the additional details
suggested.
12.) Page 3, Oil Spill Response Guidance and Procedures, First Paragraph; The following
should be clarified:
• The chair of the National Response Team (NRT) is a representative of EPA and
the vice chair is a representative of the Coast Guard, with the exception of periods
of activation because of response action. During activation, the chair is the
member agency providing the On-Scene Coordinator (OSC). See 40 CFR §
300.110. Therefore, during the Deepwater Horizon (DWH) oil spill, the chair was
the Coast Guard.
• Area Committees [not the Regional Response Team (RRT)] are responsible for
developing Area Contingency Plans (ACPs) for each area designated by the
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President. RRT's are responsible for reviewing all of the ACP's in their respective
region. Responsibilities of Area Committees are described in §300.205(c). See 40
CFR§ 300.105.
• ACPs are plans that are developed to be implemented in conjunction with the
National Contingency Plan (NCP) and Regional Contingency Plan (RCP). See 40
CFR § 300.5 (Definitions).
OIG Response:
First bullet point: The description in question is part of a brief background on the NCP and is
consistent with the NCP. The next section of the report, as well as information in chapter 3,
explains the roles of EPA and USCG during the Gulf Coast oil spill response. No change is
needed.
Second bullet point: The section was modified to include a note that Area Committees develop
ACPs.
Third bullet point: This section was modified in our final report to include this information.
13 .) Page 4, BP and Federal Government Roles in Cleanup, First Paragraph, First Sentence
and Footnote (FN) 5; Although it assumed this role during the response, BP is not the
only party legally responsible for the cleanup of the DWH oil spill, as the first sentence
of this paragraph seems to indicate. Rather, as indicated in FN 5, the Coast Guard
designated BP and 5 other companies as responsible parties under the Oil Pollution Act.
The text of this paragraph should be revised to conform to the footnote.
OIG Response: This sentence was modified in our final report to incorporate the footnote into
the text.
14.) Page 4, BP and Federal Government Roles in Cleanup, First Paragraph, Second
Sentence and FN 6; It is unclear how FN 6 relates to the second sentence of this
paragraph, which identifies the lead response agencies for oil spills in the coastal and
inland zones. It would be more appropriate to cite to the CWA Section 311(c) and (e)
authorities in FN 6. In addition, the current language does not clearly summarize EPA's
RCRA Section 7003 authority; if such language is used, replace the current language with
the following: "Under RCRA, EPA may require action upon receiving evidence that past
or present handling of solid or hazardous waste may require action when a situation may
present an imminent and substantial endangerment to health or the environment. It was
not necessary for EPA to invoke this authority during the response."
OIG Response: Further citation of the sentence referenced is not necessary. The paragraph was
modified in our final report to incorporate the footnote into the text.
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15 .) Page 4, BP and Federal Government Roles in Cleanup, First Paragraph, Second to Last
Sentence; This sentence needs to be restructured to clarify the intended meaning. The
beginning of the sentence, "EPA established responders" is completely independent from
the second component of the sentence, "BP Unified Commander served as the
responsible party's counterpart to the FOSC." EPA responders were supporting the
Coast Guard FOSC, not BP.
OIG Response: The sentence was modified in our final report.
16.) Page 4, BP and Federal Government Roles in Cleanup, Second Paragraph, Second
Sentence; Insert the phrase "and certain deliverables" after "submit waste management
plans..."
OIG Response: The sentence was modified in our final report.
17.) Page 4, BP and Federal Government Roles in Cleanup, FN 7; The FOSC is a "pre-
designated federal official" not a "representative."
OIG Response: The sentence was modified in our final report.
18.) Page 5, Noteworthy Achievements, First Sentence; Replace "EPA worked to ensure" with
"As a support agency to the Coast Guard, EPA worked to ensure."
OIG Response: The sentence was modified in our final report.
19.) Page 5, Noteworthy Achievements, Third Paragraph, Second Sentence; The sentence
should be revised to read, "We interviewed the incident FOSC...."
OIG Response: The sentence was modified in our final report.
20.) Page 6, Scope and Methodology, Last Paragraph, First Sentence; Delete "and" so the
phrase reads "waste management oversight activities."
OIG Response: This is an editorial comment. No change is needed.
Chapter 2 - EPA Demonstrated Leadership in Oversight of Waste Management Activities
1.) Page 7, First Paragraph, First Sentence; Delete "and plans" so the phrase reads "EPA
initiated oversight activities that went beyond..."
OIG Response: The sentence was modified in our final report.
2.) Page 7, First Paragraph, Third Sentence; The statement that the increased federal
oversight of BP's waste management activities "was not designed to independently
account for the full volume and disposition of waste produced" suggests that some
amount of spill waste was unaccounted for. There is no evidence that would suggest or
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support this conclusion. Similarly, on page 8 under EPA's Waste Management
Oversight Activities the first sentence states that EPA's oversight did not include
procedures to "independently track" the handling and disposal of spill waste. EPA did
perform independent reviews of the waste tracking data BP submitted on the ICS-209
Forms (Consolidated Daily Waste Tracking Reports). These independent EPA reviews
included ensuring that the data submitted were consistent between the daily and
cumulative reports for waste volumes, waste classifications and disposal facilities used.
In addition, EPA monitored BP's waste tracking and reporting for it timeliness in
accordance with the provisions set forth in the waste management directives. In fact, on
several occasions EPA and Coast Guard pointed out the waste tracking deficiencies in
letters to BP (July 1, 2010 letter from EPA/OSWER AA to BP and a July 24, 2010 letter
from the Coast Guard to BP). These letters were posted on EPA's Gulf Spill website.
OIG Response: The statement describes the intent of the federal oversight of BP's waste
management activities and does not imply that spill waste was unaccounted for. However, EPA
did not provide evidence during our review that it conducted a complete and full independent
accounting of the oil spill waste. EPA's oversight activities at staging and decontamination areas
as well as landfills did not include a review of the accuracy of what went on BP's waste
manifests. While EPA did monitor the waste tracking and reporting, it relied on BP's
documentation and website to do so. Furthermore, the review of BP's waste tracking and
reporting for timeliness is not equivalent to an independent review. No change is needed to the
report.
3.) Page 9, EPA's Waste Management Oversight Activities, Second Full Paragraph, First
Sentence; EPA did not as the sentence states, "ensure[ ] compliance at the landfill and
staging area facilities by developing a Staging/Decontamination Area and Landfill Site
Visit Plan." Rather, EPA screened facilities for compliance status before their inclusion
in the waste management plans and performed site visits to landfills to ensure that BP
was handling and disposing of waste in accordance with approved waste management
plans. These sentences should be changed to more accurately reflect EPA's role and that
the states have primary responsibility for compliance at non hazardous waste landfills, as
they are the approved authority for the administering the RCRA Subtitle D program.
OIG Response: The fact that EPA screened landfill and staging area facilities for compliance
status before their inclusion in the waste management plans is described in the second paragraph
on page 9. In the second paragraph, we note that EPA has developed a Staging/Decontamination
Area and Landfill Site Visit Plan. We describe what the plan stated EPA would do and the extent
to which the plan was adhered to. It is not necessary to restate here that the states have primary
responsibility for compliance at nonhazardous waste landfills, as that information is stated
elsewhere in the report.
4.) Page 9, EPA's Waste Management Oversight Activities, Second Full Paragraph, Last
Sentence; This sentence should be clarified to make it clear that the "2-month period"
refers to the 22 site visits to landfills and the period of "June 28 to October 4, 2010"
refers to the 190 visits to staging areas and decontamination sites.
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OIG Response: The timeframes for site visits have been clarified for both the landfills and the
staging areas and decontamination sites.
5.) Page 10, EPA's Waste Management Oversight Activities, First Paragraph, Third
Sentence under Photo; Replace "EPA required, though the directives issued by the Coast
Guard" with "The directives required" (to reflect that the Coast Guard was the FOSC, not
EPA).
OIG Response: The sentence was modified in our final report.
6.) Page 10, EPA's Waste Management Oversight Activities, First Paragraph, Fourth
Sentence under Photo; Under RCRA, a product cannot be a waste. Therefore, replace
"waste products" with "waste streams."
OIG Response: The sentence was modified in our final report.
7.) Page 10, EPA's Waste Management Oversight Activities, First Paragraph, Fifth
Sentence under Photo; Replace "toxicity exceedance" with "one exceedance of the
toxicity characteristic."
OIG Response: The exceedance of the toxicity characteristic has been further explained and
clarified in the report.
Chapter 3 - EPA Action on Lessons Learned Can Help Ensure Future Success on Oil Spill
Waste Management
1.) Page 12; The introductory paragraph states that "EPA fell short of its own goals in some
instances." This statement is without support and the report does not specify which goals
EPA failed to meet. The statement that the development of waste plans and procedures
as the response progressed "potentially diverged] resources to planning that could have
been used to strengthen the response effort" is likewise without supporting evidence or
foundation. EPA believes that were ample resources in the Incident Command System
(ICS) to handle the waste management activities that were necessary for the response for
the DWH response. The ICS system is structured to provide the necessary resources and
that diversion of resources would be contrary to the ICS system.
OIG Response: The EPA Administrator's prepared statement for the U.S. Senate, Subcommittee
on Commerce, Justice, Science, and Related Agencies, Committee on Appropriations, included
the following summary statement, which noted that EPA was committed to protecting Gulf Coast
communities:
EPA will continue to provide full support to the USCG and the Unified
Command, and will continue to take a proactive and robust role in dispersant
use as well as monitoring, identifying, and responding to potential public
health and environmental concerns, including waste management and beach
cleanup. EPA, in coordination with our federal, state, and local partners, is
(Continued on next page)
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(Continued from previous page)
committed to protecting Gulf Coast communities from the adverse
environmental effects of the Deepwater Horizon oil spill. As local Gulf Coast
communities assess the impact of the Deepwater Horizon oil spill on their
economies, EPA, in partnership with other federal, state, and local agencies, as
well as other community stakeholders, will devote its efforts necessary to assist
in the oil spill response.
In addition, EPA stated on its website that it would conduct visits to landfills twice a month and
to staging areas once a week. Directives issued by the Coast Guard also provided EPA access to
facilities or any location where waste is temporarily or permanently stored by BP. However, as
described on pages 14-16 of this report, EPA did not visit landfills, staging areas, and recycling
centers in the Gulf Coast communities of Texas and Oklahoma. Moreover, EPA did not visit or
assess any liquid waste or recycling facilities that accepted oil spill waste.
In the overview paragraph for this chapter, we include the statement: "Waste management plans
and oversight procedures were developed and finalized as the response progressed, potentially
diverting resources to planning that could have been used to strengthen the response effort." The
statement is supported by text on pages 13-14. We do not dispute or analyze the level of
resources used for waste management planning in the Incident Command System. However, we
do note that these resources (time, material, or personnel) could have potentially been used in
other aspects of the response.
2.) Page 12; In the first and last sentence of the introductory paragraph, clarify that when the
IG is referring to the "oil spill" it means the "Deepwater Horizon oil spill."
OIG Response: The first sentence was modified in our final report to be consistent with the rest
of the report. This is an editorial comment and no further changes are needed.
3.) Page 12, EPA Needs Better Waste Management Guidance for Spills of National
Significance, First Paragraph, First Sentence; Add the following language to the
beginning of the sentence: "Since the Deepwater Horizon oil spill was in the coastal
zone,..."
OIG Response: The final report text has been modified accordingly.
4.) Page 12, EPA Needs Better Waste Management Guidance for Spills of National
Significance, First Paragraph; The last sentence of this paragraph states that classification
of an oil spill as a "spill of national significance" (SONS) does not have any procedural
impact beyond the naming of a National Incident Commander. While this statement may
be an accurate reading of the applicable NCP provision (40 CFR § 300.323), it fails to
take into account CWA Section 311(c)(2)(A). This statutory provision authorizes the
President to direct all federal, state and private actions to remove a discharge that "is of
such a size or character as to be a substantial threat to the public health or welfare of the
United States." In such a case, under Section 311(c)(2)(B), the President is authorized to
take necessary removal actions "without regard to any other provision of law governing
contracting procedures or employment of personnel by the Federal Government." The
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President's authority under this provision, as with other CWA Section 311(c) authorities,
has been delegated by Section 3 of Executive Order 12777 to the Coast Guard for the
coastal zone and to EPA for the inland zone. Use of this authority, in conjunction with
classification of a spill as a SONS, would provide additional flexibility in responding to
such a spill.
OIG Response: We acknowledge that Clean Water Act Section 311 (c) grants certain authorities
and understand that the NCP allows for flexibility during oil spill responses. However, this
section of the report is focused on specific procedures that may be activated when a spill is
designated a Spill of National Significance. As Clean Water Act Section 311 does not
specifically mention Spills of National Significance, changes to the final report are not
necessary.
5.) Page 13, EPA Can Improve Performance During Spills of National Significance with
Additional Planning, First Paragraph; The last sentence states that, "However, no plans
or guidance had been developed in advance to outline what EPA's role would be in this
area for coastal Spills of National Significance." As noted several times in the draft
report, as the designated lead agency for coastal spills, it is up to the Coast Guard to
determine whether or not to even involve EPA in responses to coastal spills, including
waste management. The Coast Guard bears the responsibility for pre-planning to the
extent they believe appropriate. The IG should clarify whether it is suggesting that EPA
should expend its resources to plan for actions for which it has no jurisdiction absent a
Coast Guard request. The IG also compares EPA's response in DWH with EPA's
response in Katrina. This comparison is inappropriate because Hurricane Katrina was a
Stafford Act response, not a CWA Section 311 response, and EPA plays a different role
in Stafford Act responses than in CWA Section 311 responses in the coastal zone.
OIG Response: We acknowledge that EPA works at the request of the Coast Guard during NCP
responses in the coastal zone. However, Emergency Support Function #10 of the National
Response Framework identifies functions for supporting Agencies. In our opinion, this creates an
opportunity to develop clarifying and implementing guidance on the roles of supporting agencies
during responses under the NCP. We have compared EPA's response to Hurricane Katrina only
to point out EPA's experience in dealing with large volumes of disaster debris over an extended
period of time. No further changes to the draft report are necessary.
6.) Page 13, EPA Can Improve Performance During Spills of National Significance with
Additional Planning, Third paragraph, Second Sentence; The phrase "Time had to be
taken" indicates a negative impact, but there is no evidence to support any negative
impact.
OIG Response: The Coast Guard issued waste management directives in June 2010. The
Gulfwide waste management plan was finalized in October 2010, approximately 4 months later
and at a time when waste management oversight activities were winding down. "Time had to be
taken" is a descriptive phrase and appropriate in the context of this paragraph.
7.) Page 14, EPA Can Improve Performance During Spills of National Significance with
Additional Planning; Top of Page; The last sentence states that, "Some UAC staff
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suggested that the extensive revisions to the plan required resources that could have been
used elsewhere in the response." There is no evidence cited to support this statement. In
addition, the import of this statement is unclear. The IG seems to suggest that the waste
management plans should not have been revised to address the evolving and changing
situation presented by the handling of DWH oil spill waste.
OIG Response: The statement describes what we heard from some UAC staff, and we believe
that it is a valid point. As noted in our response to the previous comment, it took approximately
4 months to develop and finalize the waste management plans. When the Gulfwide waste
management plan was finalized in October 2010, it was at a point when the waste management
oversight activities were winding down. This calls into question whether the amount of time
spent on the plan impacted its utility.
8.) Page 14, EPA Can Improve Performance During Spills of National Significance with
Additional Planning, Third Paragraph; The fourth sentence in this paragraph states that,
"[S]ome EPA responders felt EPA conducted independent waste sampling and landfill
staging area visits for too long based on the consistent characteristics of waste streams."
The intent of this statement is not clear - while it tends to suggest that the IG believes
that EPA should have conducted less sampling and fewer site inspections, this contradicts
statements elsewhere in the report suggesting that EPA should have conducted more
inspections and sampling - including the section immediately following this statement.
EPA believed it was appropriate to conduct an aggressive independent waste sampling
and landfill/staging area visits to ensure that BP's waste management activities were
appropriate for the waste encountered. This was especially important considering the
magnitude and extent of the spill (covering a large portion of the Gulf, impacting 4 states
and 2 EPA Regions), the duration of the spill, the weathering of the spill materials, EPA's
and the public's concern over the use of dispersants, the changes in BP's waste
management approaches and facilities utilized to manage the waste, and long term
restoration activities (some of which is still occurring).
OIG Response: This sentence reflects what we heard in meetings with EPA regional staff and is
cited as such. This statement is included because it supports our finding that there were no
established criteria for demobilizing EPA's activities during the Gulf Coast oil spill response. No
changes to the final report are necessary.
9 .) Page 14, EPA Oversight Did Not Include All Affected States and Facilities, First
Paragraph; The second sentence states that, "EPA was diligent in visiting and assessing
the landfills and staging areas used to dispose of and transport waste from the oil spill.
However, it did not consistently visit or assess any other type of disposal facility." This
statement is both inaccurate and misleading. EPA never committed to do inspections at
recycling and treatment facilities. EPA committed to evaluate all disposal facilities to
ensure that they were appropriate to receive the type and quantity of waste being disposed
of, as well as their compliance records (noted in Chapter 2). (Note: EPA also was
committed to visit and assess staging areas.) EPA also relied on a mix of federal and state
resources to ensure oversight at facilities designated to receive waste (also noted in
Chapter 2), and maintained and exercised its authority to sample and inspect as needed
(additionally noted in Chapter 2). EPA focused its direct on-site activities at locations
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where it perceived the highest potential risks due to mishandling at solid waste landfills
receiving the vast majority of oil spill waste (to ensure that no hazardous wastes were
disposed of at such landfills and that the waste that was disposed of was not presenting an
imminent and substantial endangerment to health or the environment) and at staging areas
(most of which were not pre-existing, permitted facilities and thus presented the greatest
risk of exposure). The IG appears to be criticizing the Agency for prioritizing its
oversight activities and resources based on the volume and nature of the waste and
facilities.
OIG Response: This section of the report is accurate, and we do not believe it is misleading.
The Agency did not prioritize its oversight activities and resources solely based on the volume
and nature of the waste and facilities. As shown in figure 2 on page 15, liquid waste made up
64 percent of the collected waste. Furthermore, while the Agency focused on landfills and
staging areas in Alabama, Louisiana, Mississippi, and Florida, it did not visit the same types of
facilities in Texas, nor did it visit any recycling facilities.
10.) Page 16, EPA Oversight Did Not Include All Affected States and Facilities First
Paragraph, Last Sentence; Solid waste includes any material to be disposed; it may
include materials to be recycled. The statement that "materials sent for recycling are not
considered wastes" is not always true. If a recycled material is not a solid waste, then it
is not a hazardous waste and is not subject to RCRA Subtitle C requirements. However, if
the material qualifies as a solid and is a hazardous waste, it is subject to Subtitle C
regulation. The sentence needs to be rewritten.
OIG Response: Before drafting this report, we sought to determine why recycling facilities were
not included in EPA's waste management oversight activities. This statement comes directly
from our meeting with EPA in which we briefed Agency managers on our draft findings and
potential recommendations, seeking clarification on issues where needed. This section of the
report discusses limitations in EPA's oversight, and the above reference to Subtitle C regulations
is out of context. No further changes are necessary.
11.) Page 16, Some EPA Actions Caused Confusion and Frustration Regarding the E&P
Waste Exemption, Heading; The heading needs to be revised. The word "Exemption"
should be deleted from the heading or add the word "Hazardous" in front of "Waste."
OIG Response: The heading was modified in our final report.
12.) Page 16, Some EPA Actions Caused Confusion and Frustration Regarding the E&P
Waste Exemption, First Paragraph, First Sentence; The sentence should be revised to
read, "The majority of waste generated from the Deepwater Horizon oil spill was
exempted from federal hazardous waste regulations under the E&P exemption."
OIG Response: The sentence was modified in our final report.
13 .) Page 16, Some EPA Actions Caused Confusion and Frustration Regarding the E&P
Waste Exemption, First Paragraph, Second Sentence; This sentence should be revised to
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read, "Solid wastes that are covered by the E&P exemption are regulated primarily by
state and local governments."
OIG Response: The sentence was modified in our final report.
14.) Page 16, Some EPA Actions Caused Confusion and Frustration Regarding the E&P
Waste Exemption, First Paragraph; The last sentence states that, "EPA recommended
disposal actions that some responders considered a departure from its general E&P
guidance." Guidance is not legally binding and EPA has the ability to depart from guidance
where appropriate. During EPA's response to the DWH oil spill, guidance was modified to
address the evolving situation. Recommending that E&P waste that failed TCLP [Toxicity
Characteristic Leaching Procedure] go to a Class IUIC facility, rather than a Class IIUIC
facility, was consistent with providing the best possible protection to the environment and
the surrounding communities. It was also appropriate from a legal perspective. EPA
recommended that the Coast Guard, as the FOSC, order BP to dispose of the waste in a
Class I facility. The Coast Guard declined to do so. The IG appears to take the policy
debate between EPA and the Coast Guard about the appropriate handling of E&P waste that
failed the TCLP as evidence of "confusion" on the applicability of the E&P exemption.
OIG Response: We have correctly stated that EPA's response to the E&P waste that failed the
Toxicity Characteristic Leaching Procedure was a recommendation to the Coast Guard. While
EPA may have the ability to modify guidance, we are pointing out that some responders we
spoke to—both Coast Guard and EPA staff—questioned EPA's recommendation. The 2002 E&P
guidance was referenced by EPA staff and in internal EPA guidance related to the Gulf Coast oil
spill. As we write on page 19, when departing from guidance, a consistent message is necessary
to ensure that EPA staff is fully knowledgeable of the necessity for additional oversight. No
further changes are necessary.
15 .) Page 16, Some EPA Actions Caused Confusion and Frustration Regarding the E&P
Waste Exemption, First Paragraph, Fourth Sentence; The IG has mischaracterized the
purpose and intent of the Q&A document, and then criticizes the Q&A document for
failing to cover matters (additional testing of the oil spill waste prior to disposal) that it
was not intended to cover. The Q&A document was designed as a summary response to
legal questions that arose as a result of the Deepwater Horizon oil spill. The document
was intended to provide brief responses as an aid to senior Agency officials. The
document was not intended to reflect the comprehensive analysis of individual spill-
specific issues (the waste management directives and plans developed pursuant to those
directives were intended to address this level of detailed requirement).
OIG Response: We have modified our description of the Q&A document. Although we
recognize that the Q&A document was intended for senior Agency officials, we were also told
by headquarters that the document was widely distributed to headquarters and regional
management and staff working on the spill response. However, we did not find evidence
throughout our evaluation that the document was widely shared. Further guidance on the
management of the E&P waste would have provided more transparency within EPA, as we point
out in the conclusion of this chapter.
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16.) Page 17, Some EPA Actions Caused Confusion and Frustration Regarding the E&P
Waste Exemption, First Complete Paragraph; Strike, "EPA's 2002 Guidance on E&P
waste states that it is the operator's (e.g., BP) responsibility to determine whether waste
is subject to hazardous waste regulations." This statement from the guidance is taken out
of context. 40 CFR § 262.11 requires a generator of solid waste to make a hazardous
waste determination. While a generator of solid waste is required to make such a
determination, EPA and its authorized states retain the ability to make their own
determination and challenge a generator's determination.
OIG Response: The purpose of this paragraph is to show that EPA's testing of the waste was a
departure from general procedure, according to EPA's guidance and according to some staff we
spoke to, which resulted in some confusion and/or criticism. We therefore do not believe these
statements were taken out of context. We also go into detail about the directives that mandated
activities specific to this oil spill in chapters 1 and 2 of this report. No further changes are
necessary.
17.) Page 17, Some EPA Actions Caused Confusion and Frustration Regarding the E&P
Waste Exemption, First Complete Paragraph; Strike, "Several EPA responders,
including oil spill OSC's, told us they were not aware of EPA ever having taken
samples of oil spill waste prior to this spill." That may be true, but there is no
comparison with the activities conducted in other oil spills with the activities conducted
during the DWH response. As noted on page 4 of the report to provide oversight of
BP's waste management activities, the Coast Guard, with EPA concurrence, issued
waste management directives to BP.
These directives required BP to submit waste management plans and certain deliverables
to be approved by the Coast Guard, and to report information on the amount and
characteristics of the waste on BP's website. The waste management directives were
shared with the States prior to the Coast Guard's approval. Also the development of the
waste plans, which covered all affected states and allowed for state-specific management
activities, was approved by the federal and state oversight agencies. Therefore, federal
and state responders were aware of the activities that were required to be undertaken to
respond to the DWH spill.
OIG Response: The purpose of this paragraph is to show that EPA's testing of the waste was a
departure from general procedure, according to EPA's guidance and according to some staff we
spoke to, which resulted in some confusion and/or criticism. We therefore do not believe these
statements were taken out of context. We also go into detail about the directives that mandated
activities specific to this oil spill in chapters 1 and 2 of this report. No further changes are
necessary.
18 .) Page 17, Some EPA Actions Caused Confusion and Frustration Regarding the E&P
Waste Exemption, Third Full Paragraph; The first sentence states that, "Several
responders at EPA, the Coast Guard, and BP did not believe EPA could require BP to
dispose of waste as hazardous, even if it failed a toxicity test." EPA never stated that
such a disposal was required. EPA asked the FOSC - which had the legal authority under
CWA Section 31 lto require such waste to be disposed in a Class I facility - to require
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such a disposal in the interest of environmental protection. Also, replace "to dispose of
waste as hazardous" with "to dispose of E&P waste in accordance with the RCRA
Subtitle C hazardous waste regulations.
OIG Response: We have attributed this opinion to staff we spoke with at UAC, and we have
accurately characterized the opinion based on what we heard. Elsewhere in our report where we
discuss the waste in question without attribution, we characterize EPA's request to the Coast
Guard as a recommendation. We have modified the second part of the sentence to clarify that we
are discussing E&P waste. No further changes are necessary.
19.) Page 18, Some EPA Actions Caused Confusion and Frustration Regarding the E&P
Waste Exemption, First Paragraph under Photo; The third sentence states that, "It took
56 days for this container of waste to be disposed of— 11 days longer than the
maximum 45 days allowed for containers to be stored at staging areas, as specified by
BP's waste management plan." EPA and the Coast Guard agreed that disposal in Class I
UIC well was legally proper if ordered by the FOSC pursuant to CWA Section 311 if the
FOSC determines that such disposal is appropriate to protect public health or welfare of
the United States from an imminent and substantial threat. EPA asked the FOSC to
require disposal of the waste in a Class I UIC well.
OIG Response: We note the Agency's comment, but it does not address the sentence. This
sentence describes the amount of time the container of waste was held. No changes are needed
for our final report.
20.) Page 18, Some EPA Actions Caused Confusion and Frustration Regarding the E&P
Waste Exemption, First Paragraph under Photo; The fourth sentence states that, "In
addition, a UAC representative pointed out that the container used to store the waste in
question could not be used for further cleanup activities during this time." This statement
draws conclusions that are without factual support. The report cites no evidence that the
container used to store the waste would have been utilized for further cleanup activities.
OIG Response: The statement comes from a UAC representative, and we believe it is a valid
point. It is also a fact that the container could not be used for two purposes (storing the waste in
question and further cleanup activities) at the same time.
21.) Page 18: Some EPA Actions Caused Confusion and Frustration Regarding the E&P
Waste Exemption, First Paragraph under Photo, Last Sentence; Delete "exempt" from
the phrase "dispose of the E&P exempt waste."
OIG Response: The sentence was modified in our final report.
22.) Page 19, Conclusion, First Paragraph, First Sentence; Replace "provided assurance
regarding the disposition and proper handling of waste" with "provided assurance
regarding the proper handling and disposition of waste."
OIG Response: The sentence was modified in our final report.
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Distribution
Office of the Administrator
Assistant Administrator for Solid Waste and Emergency Response
Agency Followup Official (the CFO)
Regional Administrator, Region 4
Regional Administrator, Region 6
Agency Followup Coordinator
General Counsel
Associate Administrator for Congressional and Intergovernmental Relations
Associate Administrator for External Affairs and Environmental Education
Audit Followup Coordinator, Office of Solid Waste and Emergency Response
Audit Followup Coordinator, Region 4
Audit Followup Coordinator, Region 6
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