Office of Inspector General
Audit Report
Identification and Enforcement of
RCRA Significant Non-Compliers by
EPA Region III and the
Virginia Department of Environmental
Quality
Audit Report No. 1999-P-00215
September 20, 1999
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Inspector General Division
Conducting the Audit:
EPA Region Covered:
EPA Program Office Involved:
for Enforcement (RCRA)
Virginia Department of
Environmental Quality
Regions Covered:
Mid-Atlantic Audit Division
Philadelphia, PA
Region III
Office of the Associate Director
Philadelphia, PA
Tidewater Regional Office
Virginia Beach, VA
Northern Virginia Regional
Office
Woodbridge, VA
West Central Regional Office
Roanoke, VA
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF INSPECTOR GENERAL
MID-ATLANTIC DIVISION
' 1650 Arch Street
Philadelphia, Pennsylvania 19103-2029
(215) 814-5800
September 20, 1999
MEMORANDUM
SUBJECT: Final Audit Report on the Identification and Enforcement of RCRA
Significant Non-Compliers by EPA Region III and the Virginia
Department of Environmental Quality
Audit Report Number 1999-P-00215
FROM: Carl A. Jannetti
Divisional Inspector General for Audit (3AI00)
TO: W. Michael McCabe
Regional Administrator (3RA00)
Attached is our final audit report on the Identification and Enforcement of Resource
Conservation and Recovery Act (RCRA) Significant Non-Compliers. The overall
objectives of this audit were to evaluate Environmental Protection Agency (EPA)
Region III and Virginia Department of Environmental Quality adherence to the
EPA Enforcement Response Policy, specifically, the identification and enforcement
of Significant Non-Compliers.
This audit report contains findings that describe problems the Office of Inspector
General (OIG) has identified and corrective actions the OIG recommends. This
report represents the opinion of the OIG. Final determinations on matters in this
report will be made by EPA managers in accordance with established EPA audit
resolution procedures. Accordingly, the findings contained in this audit report do
not necessarily represent the final EPA position, and are not binding upon EPA in
any enforcement proceeding brought by EPA or the Department of Justice.
ACTION REQUIRED
In accordance with EPA Order 2750, you as the action official are required to
provide us a written response to the audit report within 90 days of the final audit
report date. For corrective actions planned but not completed by the response date,
reference to specific milestone dates will assist in deciding whether to close this
report.
-------
We have no objections to the further release of this report to the public. Should you
have any questions about this report, please contact Michael Wall or me at (215)
814-5800.
Attachment
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EXECUTIVE SUMMARY
Objectives The objectives of our audit were to determine if Region III
and the Virginia Department of Environmental Quality
(DEQ) took timely and appropriate enforcement actions
against the most serious RCRA violators. Specifically, did
the Region and the State comply with EPA's Enforcement
Response Policies of 1987 and 1996 by:
~ Identifying and classifying the most serious violators
as "Significant Non-Compliers."
~ Taking timely and appropriate enforcement actions in
accordance with the applicable Enforcement Response
Policy.
~ Ensuring violators returned to compliance within a
timely manner.
~ Recording accurate data in the Resource Conservation
and Recovery Information System (RCRIS).
Results-in-Brief Our audit disclosed several areas needing improvement with
respect to EPA's Enforcement Response Policy.
DEQ Compliance
The Virginia Department of Environmental Quality rarely
classified facilities with serious RCRA violations as
Significant Non-Compliers. Consequently, DEQ did not
always take timely enforcement action against these
violators. In some cases the State delayed taking any
enforcement action, and sometimes these delays persisted for
several years. The absence of Significant Non-Complier
classifications occurred because DEQ did not incorporate
Enforcement Response Policy criteria into its enforcement
screening process. The delays occurred because DEQ
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emphasized "compliance assistance" over "escalated
enforcement." As a result, most Significant Non-Compliers
remained unaware of the gravity of their violations.
Although DEQ usually took appropriate enforcement actions,
these actions were unduly delayed, which may have
increased the potential for harm to human health and the
environment. In our opinion, compliance with EPA's
Enforcement Response Policy would alleviate these
conditions.
Region III Compliance
The Region did not always classify facilities with serious
violations as Significant Non-Compliers as required by EPA's
Enforcement Response Policy. Although for the most part
the Region took enforcement action against violators, it did
so at a delayed pace and entered inaccurate information into
RCRIS, the Agency's information system for RCRA. The
absence of Significant Non-Complier classifications occurred
because the Region did not incorporate the Enforcement
Response Policy criteria into its enforcement screening
process. The delays occurred because the Region's screening
process to decide the type of enforcement (i.e., informal or
formal) can take up to a year to complete. The RCRIS
inaccuracies occurred largely because regional enforcement
personnel are not adequately trained. As a result, the most
significant violators are unaware of the gravity of their
violations, enforcement is unduly delayed, and RCRIS is
inaccurate. In our opinion, compliance with EPA's
Enforcement Response Policy and better training would help
remedy these conditions.
Region III Timely and Appropriate (T&A) List
EPA's Enforcement Response Policy stipulates that a facility
that has not responded to informal enforcement action and
remains out of compliance for 180 days will be classified as a
Significant Non-Complier. Despite this requirement,
Region III allows State Agencies 300 days to consider:
(a) classifying violating facilities as Significant Non-
Compliers, and (b) initiating formal enforcement action.
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Consequently, facilities can remain non-compliant and
increase the potential for harm to human health and the
environment.
Missing Records
The Region did not adequately maintain official RCRA
enforcement and compliance files. Specifically, the
contractor responsible for custody of the files was unable to
provide certain documents pertaining to 10 of the 30
facilities in our random sample, taken from fiscal years 1996
and 1997 inspections conducted by the Region.
Recommendations We recommend the Region III Administrator ensure that the
Virginia DEQ:
~ Adhere to the EPA Enforcement Response Policy;
specifically, establish procedures for identifying
Significant Non-Compliers, and take appropriate
enforcement actions to ensure their timely return to
compliance.
~ Escalate to formal enforcement when a facility is
recalcitrant, rather than continue with "compliance
assistance."
~ Is aware how to refer facilities as possible Superfund
candidates to Region III.
We also recommend the Region III Administrator:
~ Ensure regional compliance with EPA's Enforcement
Response Policy regarding classifying Significant Non-
Compliers and taking timely and appropriate
enforcement action.
~ Clearly define enforcement officer responsibilities.
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~ Conduct monthly Tier I meetings to expedite
enforcement decisions and actions against violating
facilities.
~ Ensure that RCRA personnel are adequately trained
in RCRIS data entry requirements and establish data
verification procedures for RCRIS input.
~ Streamline the enforcement screening process. One
possibility would be to empower inspectors/enforce-
ment officers to initiate informal enforcement actions.
~ Cease the practice of issuing T&A lists to the States
for facilities out of compliance for 300 or more days.
~ Institute the practice of issuing T&A lists to the States
for facilities out of compliance at the 180-day mark,
and require the States to make a Significant Non-
Complier determination and take appropriate
enforcement action.
~ Establish adequate custody controls over official
RCRA files.
~ Conduct a management review of the contractor
responsible for the RCRA file room.
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TABLE OF CONTENTS
EXECUTIVE SUMMARY i
CHAPTER 1 1
INTRODUCTION 1
Objectives 1
Background 1
Noteworthy Accomplishments 4
Scope and Methodology 5
Prior Audit Coverage 8
CHAPTER 2 9
DEQ COMPLIANCE WITH ENFORCEMENT RESPONSE POLICY 9
Significant Non-Compliers Not Designated 9
Delay in Enforcement Action 14
Conclusion 16
Recommendations 17
Region Ill's Response to Recommendations 17
Virginia DEQ's Response to Recommendations 17
OIG's Evaluation of Responses 18
CHAPTER 3 19
REGION III COMPLIANCE WITH EPA ENFORCEMENT RESPONSE
POLICY 19
Significant Non-Compliers Not Designated 19
Delay in Enforcement Action 20
Inaccuracies with RCRIS Data 21
Conclusion 22
Recommendations 23
Region Ill's Response to Recommendations 23
OIG's Evaluation of Region Ill's Response 24
CHAPTER 4 25
REGION III TIMELY AND APPROPRIATE LIST 25
Region Ill's 300-Day T&A List 25
Significant Non-Compliers on the FY 1997 T&A Lists 26
Conclusion 28
Recommendations 28
Region Ill's Response to Recommendations 28
OIG's Evaluation of Region Ill's Response 29
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CHAPTER 5 31
MISSING RECORDS 31
Missing Data 31
Recommendations 33
Region Ill's Response to Recommendations 33
OIG's Evaluation of Region Ill's Response 33
APPENDIX A 35
GLOSSARY 35
APPENDIX B 39
Region Ill's Response to Draft Report 39
Virginia DEQ's Response to Draft Report 45
APPENDIX C 51
DISTRIBUTION 51
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CHAPTER 1
INTRODUCTION
Objectives EPA advocates taking effective enforcement action against
the most serious violators of hazardous waste regulations.
The goal of the Agency's enforcement program is to attain
and maintain a high rate of compliance within the regulated
community, by establishing a comprehensive monitoring and
inspection program. This program is to address the most
serious violators with timely and effective enforcement
actions, in order to return facilities to compliance as quickly
as possible and to deter future noncompliance.
The objectives of our audit were to determine if Region III
and the Virginia Department of Environmental Quality
(DEQ) took timely and appropriate enforcement actions
against the most serious violators. Specifically, did the
Region and the State comply with the Enforcement Response
Policies of 1987 and 1996 by:
~ Identifying and classifying the most serious violators
as "Significant Non-Compliers."
~ Taking timely and appropriate enforcement actions in
accordance with the applicable Enforcement Response
Policy.
~ Ensuring violators returned to compliance within a
timely manner.
~ Recording accurate data in the Resource Conservation
and Recovery Information System (RCRIS).
Background Hazardous waste is solid waste which may pose a threat to
human health or the environment because of its quantity,
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concentration, or physical, chemical, or infectious
characteristics. In 1976, Congress enacted the Resource
Conservation and Recovery Act (RCRA) because of past
hazardous waste mismanagement. Subtitle C of this Act
established a framework for managing hazardous waste from
its generation to final disposal. RCRA also mandated that
EPA develop a comprehensive set of hazardous waste
regulations. As a result, all solid waste "generators" must
determine if their waste is hazardous, and thus subject to
regulation under Subtitle C. Also, these generators, as well
as any "transporters," or "treatment, storage, and disposal
facilities" must manage their hazardous wastes in
accordance with Subtitle C. In addition, most treatment,
storage, and disposal facilities must obtain a permit, which
outlines precautions to be taken to manage waste in a
manner that adequately protects human health and the
environment.
Congress intended for the States to implement RCRA,
coupled with oversight by the Federal Government. Under
RCRA Section 3011, EPA awards annual grants to develop
and implement State hazardous waste programs, which
become "authorized" when EPA determines that the State
programs are consistent with the Federal program. The
States negotiate workloads with EPA and have primary
responsibility for Subtitle C administration. However, EPA
retains oversight responsibility, parallel enforcement
authority, and can withdraw authorization if a State
program fails to comply with RCRA regulatory requirements.
Currently, all States within Region III are authorized and
overseen by the Region.
In 1987, EPA issued an Enforcement Response Policy (ERP).
In 1996, EPA revised this policy, which together with several
other documents, define the Federal RCRA Enforcement
Program. Basically, the ERP requires that when inspections
disclose facilities with violations: (a) timely and appropriate
enforcement action is warranted, and (b) such enforcement
action can be either formal or informal depending upon the
seriousness of the violations. Response time guidelines are
established in the ERP for taking formal and informal
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enforcement actions, and the policy establishes criteria for
determining the appropriate action to be taken.
Inspections and Formal enforcement actions, which include administrative
Enforcement orders, civil or criminal lawsuits, and/or monetary penalties
are reserved for Significant Non-Compliers, or "SNCs,"
defined as:
Those facilities which have caused actual
exposure or a substantial likelihood of exposure
to hazardous waste or hazardous waste
constituents; are chronic or recalcitrant
violators; or deviate substantially from the
terms of a permit, order, agreement or from
RCRA statutory or regulatory requirements.
(Note: The 1987 Enforcement Response Policy
classified the worst facilities as High Priority
Violators).
Specific formal enforcement tools include: (a) "Consent" or
"Final Orders," which are agreements between the State or
EPA and the facility owner; (b) "Unilateral Orders," which
are issued by the State or EPA to assert the Agency's
position; or (c) a referral to the Department of Justice or the
Attorney General's Office for action.
Informal enforcement actions are minimal responses
reserved for the less serious, or secondary violators. Such
actions include letters of non-compliance, letters of warning,
or notices of violation, but not monetary penalties.
Nonetheless, a secondary violator can be reclassified as a
Significant Non-Complier should the facility fail to return to
compliance. Also, where appropriate, in lieu of enforcement,
the Enforcement Response Policy advocates "compliance
monitoring" or "compliance assistance" to bring facilities into
compliance with regulations.
Region III inspections are conducted by both the RCRA
Compliance and Enforcement Branch (of the Waste and
Chemicals Management Division), and by the Region's
Environmental Services Division (in Annapolis, Maryland
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and Wheeling, West Virginia). Inspections which yield
violations are referred to the RCRA Compliance and
Enforcement Branch. After screening for past violations,
this Branch evaluates the seriousness of the current
violation, its potential or actual harm to public health or the
environment, any enforcement actions taken, and whether it
is a repeat or recurring violation. The Branch's
recommendation is then formulated into an enforcement
action at a quarterly meeting attended by the Environmental
Services Division; the Office of Enforcement, Compliance and
Environmental Justice; the Office of Regional Counsel; and
the Criminal Investigations Division.
In Virginia, State RCRA inspections and enforcement actions
are conducted by six Department of Environmental Quality
(DEQ) regional offices, using as criteria, DEQ's Compliance
and Enforcement Guidance Manual, dated March 12, 1996.
As this manual did not fully address the issue of Significant
Non-Compliers, few facilities inspected by the State were
designated as such. However, DEQ officials informed us that
the manual would be revised and fully address this issue.
Timely & Region III maintains a list of facilities that have not
Appropriate List responded to State informal enforcement actions and that
have been non-compliant for more than 300 days. Monthly,
the Region forwards this "timely and appropriate" (T&A) list
to each State to determine appropriate enforcement action.
Quarterly, the Region holds conference calls to discuss the
status of these T&A facilities. According to the Enforcement
Response Policy, EPA can initiate its own enforcement action
if a State fails to take timely and appropriate enforcement.
At the beginning of FY 1997, there were approximately 1,300
facilities on the Region's T&A list; by fiscal year's end this
number had been reduced to 162 facilities.
Overall, we found Virginia DEQ's compliance and
enforcement specialists very knowledgeable about the
facilities within their jurisdiction. One particularly strong
aspect of the State's program is that the personnel who
perform the inspections, also prepare and sign the informal
Noteworthy
Accomplishments
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enforcement letters, and do so usually within a month of the
inspection. This helped ensure timely enforcement, as many
of the secondary violators swiftly returned to compliance.
Scope and This audit was performed in accordance with the
Methodology Government Auditing Standards (1994 Revision) issued by
the Comptroller General of the United States as they apply
to program audits. Our audit included tests and other
auditing procedures we considered necessary. We evaluated
the effectiveness of the hazardous waste enforcement and
compliance programs for Region III and Virginia DEQ. We
also evaluated the extent of oversight and guidance that
Region III provided to DEQ in the management of its
program.
We conducted our fieldwork in EPA Region III and in three
Virginia DEQ regional offices. At Region III, we reviewed
the RCRA Compliance and Enforcement Branch under the
Waste and Chemicals Management Division. In Virginia, we
reviewed the Tidewater Regional Office in Virginia Beach,
the Northern Virginia Regional Office in Woodbridge, and
the West Central Regional Office in Roanoke. We also
accompanied Virginia DEQ personnel on two facility visits.
For Region III, we randomly selected for review 30 of the 54
RCRA facilities inspected by regional inspectors during fiscal
years 1996 and 1997. This sample included 21 facilities with
violations to determine if they should have been classified as
Significant Non-Compliers and 9 facilities with no violations
to determine the accuracy of the reports on these facilities.
However, we were only able to review 20 of the facilities,
because the Region could not locate the files or inspection
reports for the remaining 10 facilities.
We selected Virginia for review because it reported a high
percentage of violations identified for fiscal years 1996 (21%)
and 1997 (30%) as compared to other States within the
Region, and because the State reported an 86% reduction on
its T&A lists during FY 1997. We selected the three DEQ
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offices based on percentages of violations reported during
inspections, seeking one high, one medium, and one low.
INSPECTIONS WITH VIOLATIONS
1996
1997
Tidewater
30%
49%
Northern Virginia
32%
32%
West Central
22%
15%
We randomly selected for review the files for 92 of the 638
facilities inspected by the three DEQ offices as follows:
DEQ INSPECTIONS WITH
VIOLATIONS
1996
1997
Tidewater
13
20
Northern Virginia
14
18
West Central
16
11
We also reviewed 54 facilities from EPA Region Ill's fiscal
year 1997 T&A lists to determine if the facilities should have
been classified as Significant Non-Compliers, and if so,
whether enforcement and compliance actions were timely.
T&A LIST FACILITIES REVIEWED
11/01/96
3/30/98
Tidewater
11
1
Northern Virginia
13
2
West Central
27
0
At both Region III and DEQ, we reviewed RCRA compliance
and enforcement documents including: inspection reports,
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notices of violations, consent orders, administrative orders,
and other related correspondence. We compared the data in
RCRIS to other EPA and State records to determine if the
information was accurate.
We reviewed management controls and procedures
specifically related to our objectives. However, we did not
review the internal controls associated with the input and
processing of information into RCRIS or other automated
records systems. We reviewed Region Ill's Fiscal Year 1997
Assurance Letter prepared to comply with the Federal
Managers' Financial Integrity Act and noted no weaknesses
pertaining to the scope of work audited.
In summary, we reviewed enforcement and compliance
procedures taken by the Region and by DEQ against
violators, especially Significant Non-Compliers, or those we
believe should have been classified as such. Specifically, we:
~ Discussed facility files with Region III and DEQ staff.
~ Evaluated internal controls over the inspection and
enforcement and compliance processes.
~ Reviewed enforcement and compliance actions taken
by Region III and DEQ against violators and
evaluated the effectiveness of these actions.
~ Analyzed the procedures followed for classifying
Significant Non-Compliers.
Our audit noted weaknesses in both Region Ill's and DEQ's
hazardous waste programs. These weaknesses are discussed
in Chapters 2 through 5.
We completed our survey on June 16, 1998, and initiated an
in-depth audit. We submitted position papers on potential
issues to Region III on January 6, 1999. On the same day we
issued excerpted position papers to DEQ on State-specific
topics. We received DEQ's response on January 27, 1999,
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and the Region's response on January 29, 1999, and adjusted
our findings and recommendations accordingly.
We issued the draft report on June 30, 1999. Region III and
Virginia DEQ submitted their responses on August 9, 1999.
We changed the draft report where necessary, but our overall
positions remained unchanged. The responses and our
evaluation of the State's and Region Ill's responses are
summarized at the end of Chapters 2 through 5, and
provided in their entirety in Appendix B. Virginia DEQ
declined an exit conference. We held an exit conference with
Region III on September 8, 1999.
Prior Audit No recent EPA Office of Inspector General (OIG) audit
Coverage reports addressed Region III RCRA Enforcement &
Compliance programs. Our review is similar to an OIG
Headquarters Audit Division report entitled, Significant
Non-Complier Enforcement by EPA and Washington State
(Report No. E1GSF7-11-0019-8100093) issued on March 31,
1998, and two OIG Eastern Audit Division reports entitled:
RCRA Significant Non-Complier Identification &
Enforcement by the Rhode Island Department of
Environmental Management (Report No. E1GSD8-01-0006-
9100078) issued on January 21, 1999; and, Region 2's
Enforcement of the Resource Conservation and Recovery Act
(RCRA) (Report No. 1999-1-00224) issued on July 21, 1999.
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CHAPTER 2
DEQ COMPLIANCE WITH ENFORCEMENT RESPONSE POLICY
The Virginia Department of Environmental Quality rarely
classified facilities with serious RCRA violations as
Significant Non-Compliers. Consequently, DEQ did not
always take timely enforcement action against these
violators. We also noted that in some cases the State delayed
taking any enforcement action, and that sometimes these
delays persisted for several years. This absence of
Significant Non-Complier classifications occurred because
DEQ did not incorporate Enforcement Response Policy
criteria into its enforcement screening process. The delays
occurred because DEQ emphasized "compliance assistance"
over "escalated enforcement." As a result, most Significant
Non-Compliers remained unaware of the gravity of their
violations. Although DEQ usually took appropriate
enforcement actions, these actions were unduly delayed,
which may have increased the potential for harm to human
health and the environment. In our opinion, compliance
with EPA's Enforcement Response Policy would alleviate
these conditions.
Significant Non-
Compliers Not
Designated
According to EPA policy, a facility is a Significant Non-
Complier if it: (a) causes an actual or potential release of
hazardous waste; (b) is recalcitrant; (c) experiences recurring
violations; or (d) significantly deviates from RCRA
regulations. DEQ conducted 638 inspections during fiscal
years 1996 and 1997. From this amount, we randomly
selected 92 facilities, plus 54 other Virginia facilities listed
on EPA Region Ill's fiscal year 1997 "timely and appropriate"
lists. Whereas DEQ designated 2 of these 146 facilities as
SNCs, we concluded that 12 facilities should have been so
designated.
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Following are two examples: the first illustrates the
circumstances regarding one of the facilities deemed as a
Significant Non-Complier by the State; the second example
depicts a facility which we believe not only should have been
a SNC, but also referred to EPA for a possible Superfund
response.
DEQ Example - DEQ classified this facility as a Significant Non-Complier
Case VA12 following a December 1996 inspection, which revealed
violations for: (1) inadequate training of hazardous waste
handlers; (2) poorly labeled hazardous waste containers;
(3) open containers; and (4) containers with missing
accumulation dates. According to the Enforcement Response
Policy, the State should have brought formal enforcement
action against this facility by July 1997. Instead, DEQ
engaged in only informal enforcement actions over a two-
year period. This occurred because the enforcement
specialist believed he could gain compliance using the
underlying threat of a possible formal enforcement order
containing a civil penalty. However, the cordiality of his
communications with the facility appeared to belie this
"threat" in that they contained language such as: "We regret
the necessity. . . ." and "Won't you please . . . . " and ". . . we
urge you to send it at your earliest convenience."
Having been unsuccessful in gaining compliance, in May
1998, the enforcement specialist recommended that DEQ
assess a civil charge against the facility noting that ". . . the
extent and gravity of the violation is major (capability and
prior history with similar violations, respectively)."
However, when DEQ attempted to attain the facility's
agreement with a consent order, the facility refused to
cooperate. And, instead of issuing a Unilateral Order to
force the facility into compliance, DEQ conducted another
inspection and issued an informal enforcement action. In
July 1998, DEQ again considered trying the formal
enforcement route. However, as of January 1999 the formal
Enforcement Order had yet to be issued, and two years had
passed since the facility was classified as a Significant Non-
Complier.
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EPA OIG Example Regarding the second example, we believe this facility should
- Case VA01 have been classified as a Significant Non-Complier, and also
referred to EPA for possible Superfund action.
Chronology
January 1992 - Complaint about illegal dumping of broken
batteries and gasoline.
August 1992 - The State inspection found problems
regarding piles of tires and petroleum, gasoline, and
antifreeze spills.
July 1993 - DEQ requested facility owner to immediately
cease and close operation of unauthorized facility, remove all
wastes, and sample soil and groundwater.
October 1993 - Soil and water samples revealed levels of
lead ranging from 5.4 parts per million (ppm) to 730 ppm
(the maximum allowable level is 5 ppm). DEQ continued to
inspect the facility over the next two years, but in accordance
with its policy of "compliance assistance" also continued to
give the owner time extensions.
October 1995 - DEQ inspection disclosed the owner placed
contaminated soil and batteries on adjacent Navy property,
thus creating an unauthorized waste pile in violation of
RCRA hazardous waste regulations. Thus, the facility was
now subject to RCRA.
January 1996 to January 1997 - DEQ threatened owner
with enforcement, but no Enforcement Order was issued due
to the shortage of personnel. DEQ noted slow progress on
the lead contamination and expressed concern over the
owner releasing freon from crushed automobiles.
February 1997 - DEQ sent a "Notice of Violation" to the
owner and threatened formal enforcement action.
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March 1997 - DEQ and owner discussed actions he must
take, including removing tires and checking for more buried
batteries.
May 1997 - Facility assigned a "non-notifier" identification
number; i.e., EPA made aware of hazardous waste on the
site.
September 1997 - Federal judge fined the facility owner
$24,000 and sentenced him to six months of home detention
for crushing thousands of vehicles, without first removing
their CFC-laden freon. This was a violation of the Clean Air
Act.
October 24, 1997 - Formal Enforcement Order signed
whereby the owner agreed to: remove the waste from his site
and the Navy property; conduct soil and groundwater
monitoring; submit and implement closure plans; remove
existing tires within nine months; develop and implement a
petroleum waste management plan; and donate $20,000 to a
local Department of Emergency Medical Services.
November 1997 - Local municipality orders owner to
remove tires located in an area adjoining a campground by
March 1998, because it fears the tires will attract Asian
Tiger Mosquitos, which are known carriers of encephalitis
(inflammation of the brain). The abundance of tires at the
facility was addressed by DEQ in the October 1997 Order as
a solid waste violation.
February 1998 - Owner advised DEQ of his inability to pay
$250,000 for the removal and disposal of approximately 400
tons of waste.
August 1998 - Joint EPA OIG/DEQ site visit; facility
contains approximately 50,000 tires and lacks adequate soil
and groundwater testing. Thus owner is in violation of the
DEQ "Enforcement Order." [Note: Since the OIG completed
audit fieldwork shortly after this visit, no further status was
obtained.]
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The nine additional facilities that we believe should have been
classified as Significant Non-Compliers were:
FACILITY
SUMMARY
Case VA02
Facility had outstanding violations regarding: improper storage of
hazardous waste for five to six years; manifest requirements; pre-
transport requirements; and other generator requirements. DEQ
took informal enforcement in 1997 and formal enforcement in 1998
without classifying the facility as a SNC, even though there were
significant deviations from RCRA regulations and the possibility of
a release of hazardous waste.
Case VA03
An inspection on 04/21/94 noted four violations dealing with
record- keeping requirements and container requirements. In
03/96, DEQ determined that two of the 04/94 violations remained
uncorrected, and although DEQ signed a final order in 06/97 (more
than 3 years later), it never classified the facility as a SNC, despite
it being cited for recurring violations.
Case VA04
An inspection on 04/21/94 noted serious violations, such as
unpermitted storage and treatment of hazardous waste and other
violations concerning training and record-keeping requirements.
DEQ did not sign a final order until 06/97, and it never classified
the facility as a SNC, despite it being cited for recurring violations.
Case VA05
An inspection on 12/14/95 noted several types of violations similar
to those reported on past inspections, i.e., open containers, poorly
labeled containers, and inadequate contingency plans. The facility
was a repeat and chronic violator; therefore, DEQ should have
classified it as a SNC.
Case VA06
While removing an underground storage tank, the facility
discovered it contained 2,700 gallons of pentachlorophenol. The
unpermitted storage of this waste, as well as an actual release of
hazardous waste, should have resulted in this facility being
classified as a SNC.
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FACILITY
SUMMARY
Case VA07
An inspection on 12/13/94 noted more than 20 violations, including
the unpermitted storage of hazardous waste. Although the facility
removed the waste within 16 days of the inspection, there had been
the potential for harm to human health and the environment.
Also, DEQ did not finalize an enforcement order until three years
after the inspection and never classified the facility as SNC.
Case VA08
An inspection on 01/08/97 noted violations similar to those
reported for past inspections, i.e., poorly labeled containers,
missing accumulation dates, and open containers. Although DEQ
took timely and appropriate enforcement action, it never classified
this repeat violator as a SNC.
Case VA09
An inspection on 02/12/96 noted several violations, including the
transportation of waste to an unpermitted facility. Although DEQ
finalized an Enforcement Order, it failed to classify the facility as a
SNC, even though it was cited for repeat deviations from RCRA
regulations.
Case VA10
Five violations remained outstanding from a 01/31/95 inspection.
DEQ's primary concern was that the facility's "drip pad" could not
contain the hazardous waste because of cracks. DEQ should have
classified the facility as a SNC, because it was recalcitrant and
violated the conditions of its 11/96 Consent Order.
Delay in In addition to not identifying Significant Non-Compliers,
Enforcement DEQ was also found to have taken delayed enforcement
Action action against facilities, and that these delays persisted for
years. Specifically, DEQ delayed enforcement against 13 of
the 94 facilities we reviewed for timeliness (92 facilities from
our random sample + 2 Significant Non-Complier facilities
from the "Timely and Appropriate Lists") and these delays
ranged from 180 to 1,395 days as follows:
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FACILITY
INSPECTION
DATE
ORIGINAL
VIOLATION
DATE
ENFORCEMENT
DAYS LATE
AS OF
AUDIT
DUE
TAKEN
Case VA06
08/25/94
08/25/94
01/95
Pending
1,395
Case VA07
12/13/94
12/13/94
04/95
04/98
1,080
Case VA03
03/21/96
04/21/94
12/94
06/97
910
Case VA04
03/21/96
04/21/94
12/94
06/97
910
Case VA01
01/03/97
09/27/95
10/95
10/97
730
Case VA11
11/19/96
02/02/95
05/95
11/96
570
Case VA12
08/05/97
12/12/96
07/97
Pending
450
Case VA10
01/31/97
01/31/95
09/95
11/96
420
Case VA13
10/31/96
10/31/96
02/98
None
240
Case VA14
10/25/95
10/25/96
01/96
09/96
240
Case VA02
11/01/96
11/01/96
09/97
04/98
210
Case VA15
11/20/95
11/20/95
03/96
09/96
180
Case VA16
02/13/96
02/13/96
05/96
11/96
180
Case VA06, at 1,395 days late, was the extreme case of
delayed enforcement. We believe this facility should have
been classified as a Significant Non-Complier, because it
stored pentachlorophenol without a permit for more than
nine years. Pentachlorophenol is a hazardous waste which
can harm the liver, kidneys, blood, lungs, nervous systems,
immune systems, and gastrointestinal tracts. In September
1994, the State learned that the soil adjoining the tank was
contaminated and that the tank contents had seeped through
the subsurface and entered a nearby creek. Nonetheless,
DEQ did not classify the facility as a Significant Non-
Complier and it delayed taking formal enforcement for
several years. According to the enforcement specialist
currently assigned to this case, the delay occurred because
DEQ was undergoing a major reorganization and the
enforcement function was being decentralized.
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Conclusion DEQ experienced difficulties classifying facilities with
serious RCRA violations as Significant Non-Compliers and
taking expedient and appropriate enforcement action against
such violators. According to DEQ personnel, these problems
derived from a variety of reasons. These reasons included:
~ DEQ did not incorporate Enforcement Response Policy
Significant Non-Complier criteria into its enforcement
screening process because State personnel were
unaware of these criteria.
~ DEQ personnel did not refer any facilities as possible
Superfund candidates because they never thought to
do so, or did not know how to do so.
~ Lengthy enforcement delays occurred because DEQ
emphasized "compliance assistance" to violators.
~ Frequent reorganizations of DEQ functions severely
disrupted enforcement efforts between the Central
Office in Richmond and the six State Regional Offices.
Nonetheless, we did note progress. For example, the
inspectors and specialists in the DEQ Regional Offices we
visited were empowered to initiate the enforcement process
where warranted, and most did so within a month of the
inspection. This is a "best practice" that we will recommend
that EPA Region III adopt. Nevertheless, we are convinced
that DEQ should take further action, namely, to lessen the
emphasis on "compliance assistance," and to abide by the
criteria provided in EPA's Enforcement Response Policy. We
also believe that both DEQ and Region III should discuss the
referral of facilities as possible Superfund candidates.
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Recommendations We recommend the Region III Administrator ensure that the
Virginia DEQ:
2.1 Adhere to the EPA Enforcement Response Policy;
specifically, establish procedures for identifying
Significant Non-Compliers, and take appropriate
enforcement actions to ensure their timely return to
compliance.
2.2 Escalate to formal enforcement when a facility is
recalcitrant, rather than continue "compliance
assistance."
2.3 Is aware how to refer facilities as possible Superfund
candidates to Region III.
Region Ill's The Region concurred with the recommendation regarding
Response to Virginia DEQ's compliance with EPA's Enforcement
Recommendations Response Policy. The Region indicated it is working with the
Office of Enforcement, Compliance and Environmental
Justice, and with DEQ to review and finalize the State's
Policy such that it is equivalent to EPA's.
Regarding escalation of enforcement actions, the Region
asserted that many of Region III states (including Virginia)
do not have the ability to issue unilateral complaints, and
therefore, must rely on negotiated settlements for the
majority of their formal enforcement actions.
According to the Region, Virginia asserted that the DEQ staff
is aware of when and who to contact at EPA when it has a
facility that may require action under Superfund.
DEQ's Response Virginia responded that its current revision to the DEQ
to Enforcement Manual established procedures for identifying
Recommendations Significant Non-Compliers and for taking appropriate
enforcement actions to ensure timely return to compliance.
The State's Manual also discusses guidance and procedures
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for ensuring that cases involving recalcitrant facilities are
escalated to formal enforcement in a timely manner. DEQ
emphasized that compliance assistance remains an
important part of its efforts to assure consistent compliance
among the regulated community. However, when a facility is
recalcitrant, or when the environment or public health is at
risk, DEQ will escalate such cases to formal enforcement.
The State also maintained that its Office of Remediation
Programs (ORP) continuously interacts with EPA's
Superfund staff, and cross-trains its ORP and RCRA staff on
hazardous waste and Superfund issues.
OIG's Evaluation EPA's and DEQ's responses concerning DEQ's establishment
of Responses of guidance and procedures to comply with the requirements
of the EPA Enforcement Response Policy meet the intent of
our recommendation.
We disagree with Region Ill's comments that DEQ does not
have the ability to issue unilateral complaints against
recalcitrant violators. According to Virginia Code, the State
does have the ability to issue unilateral complaints against
recalcitrant violators, and that such complaints may include
a penalty of up to $10,000. Therefore, we still recommend
that formal enforcement be initiated.
We disagree with Region Ill's comments that DEQ employees
were aware when to refer sites to EPA. During our review,
several DEQ employees/managers informed us that they had
been unaware of the option of referring sites to EPA. DEQ's
actions to provide additional training meets the intent of our
recommendation. No further recommendation is offered.
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CHAPTER 3
REGION III COMPLIANCE WITH EPA ENFORCEMENT RESPONSE
POLICY
The Region did not always classify EPA-inspected facilities
with serious violations as Significant Non-Compliers as
required by EPA's Enforcement Response Policy. Although
for the most part the Region took enforcement action against
violators, it did so at a delayed pace and entered inaccurate
information into RCRIS, the Agency's information system for
RCRA. The absence of SNC classifications occurred because
the Region did not incorporate the Enforcement Response
Policy criteria into its enforcement screening process. The
delays occurred because the Region's screening process to
decide the type of enforcement (i.e., informal or formal) can
take up to a year to complete. The RCRIS inaccuracies
occurred largely because regional enforcement personnel are
not adequately trained. As a result, the most significant
violators are unaware of the gravity of their violations,
enforcement is unduly delayed, and RCRIS is inaccurate. In
our opinion, compliance with EPA's Enforcement Response
Policy and better training would help remedy these
conditions.
In the previous chapter we discussed RCRA cases where
DEQ inspected the facilities and was responsible for
enforcement. In this chapter we will discuss RCRA cases
where Region III performed these functions.
We reviewed inspection reports for 20 facilities, none of
which had been classified by the Region as Significant Non-
Compliers. We believe that 4 of the 20 facilities warranted
SNC classification as follows:
Significant Non-
Compliers Not
Designated
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FACILITY
SUMMARY
Case 01
Significant and potentially health-threatening
violations for elevated levels of lead being stored
without a permit for almost three years. There was a
substantial potential for harm to the environment
because the sludge stored at the facility contained
lead toxicity at 12 times the regulatory level and was
believed to have been leaking from the storage tank.
Case 02
Numerous violations considered as chronic/repeat
violations since the mid-1980s, as well as violations of
the Federal Facility Compliance Agreement.
Case 03
Chronic/repeat violations for improper labeling and
accumulation dates that were also identified in prior
inspections as long as four years earlier.
Case 04
Numerous permit violations considered as major
deviations from RCRA regulations.
Even though the facilities were not classified as Significant
Non-Compliers, in three of the four cases the Region took
"formal" enforcement action, the appropriate response for
Significant Non-Compliers. But in Case 03 the Region opted
instead to take "informal" enforcement, the minimally
appropriate response for secondary violators, despite the fact
that repeated inspections identified identical violations.
Delay in
Enforcement
Action
The Region also did not always take timely enforcement
action against violators. Specifically, Region III delayed
enforcement against 4 of the 20 facilities in our review as
follows:
FACILITY
INSPECTION
DATE
ENFORCEMENT
DUE DATE
DAYS LATE
(AS OF AUDIT)
Case 02
12/12/96
06/10/97
350+
Case 05
03/25/97
09/27/97
250+
Case 06
03/26/97
09/22/97
250+
Case 07
06/04/97
12/04/97
180+
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Regarding the delays, RCRA regional personnel stated that
the enforcement screening process takes from several months
to over a year to complete. In one instance, an enforcement
officer's unawareness of his responsibility for the screening
process led to a case remaining idle for more than a year.
We were also informed by Region III personnel that informal
enforcement cases are sometimes ignored, because they are
considered as a lesser priority than formal enforcement
actions. Another element in the time it takes the Region to
process an enforcement action is the fact that its inspectors
are "observers," i.e., they do not draw conclusions as to
whether or not a facility committed a violation. This decision
is made jointly by upper management and the Office of
Regional Counsel. Although we did not review the Region III
screening process time frames, we did note that the DEQ
empowered its compliance specialists to process informal
enforcement actions, and that these specialists generally
accomplished this within 30 days of the inspection.
Inaccuracies with Finally, Region III also experienced difficulty with inputting
RCRIS Data accurate data in RCRIS, the national information system
used by EPA for program management, regulation
development, and regulation enforcement. We noted
discrepancies with such data for fiscal years 1996 and 1997
inspections on 13 of the 20 cases we reviewed. These
included unrecorded violations, missing or inaccurate
compliance dates, invalid violations, duplicate inspections,
and incorrect inspection types as follows:
FACILITY
DISCREPANCIES
Case 01
8 violations on inspection report, only 1 violation
in RCRIS. Facility should have been coded as a
SNC.
Case 02
Facility should have been coded as a SNC for
chronic violations.
Case 03
Compliance date of 06/23/97 missing in RCRIS.
Facility should have been coded as a SNC for
chronic violations.
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FACILITY
DISCREPANCIES
Case 04
Facility should have been coded as a SNC for
violations considered to be a potential and
imminent threat to human health and the
environment.
Case 05
7 violations on inspection report, only 5 violations
in RCRIS.
Case 06
4 violations on inspection report, only 2 violations
in RCRIS.
Case 08
5 violations on inspection report, only 2 violations
in RCRIS.
Case 09
8 violations on inspection report, only 2 violations
in RCRIS. Compliance date of 06/26/97 missing
in RCRIS.
Case 10
Compliance date should have been 05/22/97
instead of 02/10/97.
Case 11
Erroneous violation.
Case 12
Erroneous violation; facility reclassified as
Conditionally Exempt Small Quantity Generator
and not liable for violations.
Case 13
Erroneous violation; facility reclassified as a
Conditionally Exempt Small Quantity Generator
and not liable for violations.
Case 14
Inspection report cited only 1 violation yet 3
violations entered in RCRIS.
Inaccurate data has a cascading effect on the entire program.
If the data is incorrect, Region III cannot devote the proper
number of program resources to the enforcement program,
and management cannot make sound compliance decisions
about the worst violators. Inaccurate data could also lead to
erroneous conclusions of RCRA accomplishments.
According to regional RCRA personnel, Region III has yet to
incorporate the Agency's Enforcement Response Policy
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criteria into its enforcement screening process, or to begin a
policy whereby it informs facilities of violations. We were
also informed that RCRA personnel were either: (a)
unaware of the definition for a Significant Non-Complier; (b)
found it too subjective; and/or (c) unfamiliar with RCRIS
data-entry requirements for Significant Non-Complier
facilities.
Recommendations We recommend the Region III Administrator:
3.1 Ensure regional compliance with EPA's Enforcement
Response Policy regarding classifying Significant Non-
Compliers and taking timely and appropriate
enforcement action.
3.2 Clearly define enforcement officer responsibilities.
3.3 Conduct monthly Tier I meetings to expedite
enforcement decisions and actions against violating
facilities.
3.4 Ensure that RCRA personnel are adequately trained
in RCRIS data entry requirements and establish data
verification procedures for RCRIS input.
3.5 Streamline the enforcement screening process. One
possibility would be to empower the
inspectors/enforce-ment officers to initiate informal
enforcement actions.
The Region recognizes the importance of properly classifying
Significant Non-Compliers and taking timely enforcement
actions, and has therefore taken actions to correct the
"perceived" weaknesses in the program. To ensure that SNC
determinations are made for facilities that warrant such a
determination, EPA revised its enforcement screening form
to include additional questions about the nature of the
violations. [This screening form was provided to the OIG as
an attachment to EPA's official response; however, because it
Region Ill's
Response to
Recommendations
23
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is enforcement sensitive, it is not included as an attachment
to this report.]
The Region recognizes that it has areas needing improve-
ment regarding timely response, and has taken steps to
improve its ability to move facilities through the pipeline in a
more expeditious manner. These changes include: (a) the
use of contractors to provide support during EPA-lead
inspections; (b) monthly Tier 1 Meetings; and (c) the addition
of one full-time employee to conduct inspections and process
enforcement cases. The Region is also looking at shortening
the time frame for receipt of inspection reports from the
Environmental Services Division, and developing a stand-
alone database to track RCRA Enforcement from targeting
through compliance.
Finally, the Region outlined a number of ongoing actions to
focus attention on RCRIS training and establishing data
verification procedures that should improve the quality of
EPA's RCRIS data.
OIG's Evaluation Most of the Region's responses meet the intent of our
of Region Ill's recommendations, but with notable exceptions. We still
Response recommend that the Region empower inspectors/enforcement
officers to initiate informal enforcement actions to streamline
the enforcement process. We strongly believe that this "best
practice" of the Virginia DEQ has resulted in extremely
timely compliance from the State's hazardous waste
violators.
We also believe that shortening the time frame for receipt of
inspection reports from the Environmental Services Division
by 15 days will not significantly improve the enforcement
process, which currently takes anywhere from several
months to over a year to complete.
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CHAPTER 4
REGION III TIMELY AND APPROPRIATE LIST
EPA's Enforcement Response Policy stipulates that a facility
that has received informal enforcement action and remains
out of compliance for 180 days will be classified as a
Significant Non-Complier. Despite this requirement,
Region III allows State Agencies 300 days to consider:
(a) classifying violating facilities as Significant Non-
Compliers, and (b) initiating formal enforcement action.
Consequently, facilities can remain non-compliant and
increase the potential for harm to human health and the
environment.
Region Ill's 300- Region III maintains a list of facilities that have not
Day T&A List responded to State informal enforcement actions, and that
have been non-compliant for more than 300 days. The
Region forwards this "timely and appropriate" (T&A) list
monthly to each State, and holds quarterly conference calls
to discuss the enforcement status of the facilities. According
to regional personnel these facilities are considered
"potential" Significant Non-Compliers. However, we noted
that Region III and Virginia DEQ rarely classified such
facilities as Significant Non-Compliers at this point.
As explained in the Enforcement Response Policy, States
with authorized RCRA programs have the primary
responsibility for ensuring compliance with the program
requirements. However, EPA retains the authority to take
independent enforcement action in authorized States in
accordance with Section 3008 (a) (2) of RCRA. Pursuant to
this Section, EPA may take direct action after notice to the
authorized State if the State fails to take timely and/or
appropriate action.
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Significant Non- We randomly selected for review the files for 92 facilities
Compliers on the inspected by three Virginia DEQ offices. Of these 92
FY 1997 T&A Lists facilities, there were 19 facilities on the Region's fiscal year
1997 T&A hsts. Of these 19 facilities, 6 met the criteria for
Significant Non-Complier classification. Although formal
enforcement actions were taken in most cases, these actions
were untimely. The following table shows the six facilities
that were on the fiscal year 1997 T&A hsts that met
Significant Non-Complier criteria.
FACILITY
NUMBER OF
VIOLATIONS
DAYS OUT OF
COMPLIANCE
DATE OF
T&A LIST
Case VA12
7
1,749
11/01/96
Case VA07
1
1,022
03/30/98
Case VA03
4
929
11/01/96
Case VA04
13
929
11/01/96
Case VA10
5
644
11/01/96
Case VA08
6
411
11/01/96
Case VA12 was discussed in Chapter 2, as it was classified
by Virginia DEQ as a Significant-Non-Complier. The
following are summaries of the events related to the
remaining T&A cases from our sample, and which we believe
should have also been classified as Significant Non-
Comphers (or High Priority Violators as defined in the 1987
Enforcement Response Policy).
Case VA07
This facility was 1,022 days out of compliance according to
the T&A hst. The violation, being an unpermitted storage
facihty for hazardous waste, resulted from an inspection
DEQ conducted in December 1994. Because this violation
was deemed major ("Class 1"), DEQ should have classified
the facility as a "High Priority Violator" and initiated formal
enforcement action by April 30, 1995. Instead, DEQ did not
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initiate a formal enforcement action until August 1997,
which the facility did not agree to sign until April 1998, over
three years after the original inspection.
Case VA03
This facility was 929 days out of compliance according to the
T&A list, with four violations found during a DEQ April
1994 inspection. Two of these violations were corrected at
the time of another DEQ inspection in March 1996. Due to
the two violations being unresolved since 1994, the State
should have classified the facility as a Significant Non-
Complier and initiated formal enforcement action. The
actual Consent Order was eventually issued in June 1997,
over three years after the original inspection.
Case VA04
This facility was 929 days out of compliance according to the
T&A list, with 13 Class 1 and Class 2 violations found during
a DEQ April 1994 inspection. Five of these violations were
corrected at the time of another DEQ inspection in March
1996. Due to the eight violations being unresolved since
1994, the State should have classified the facility as a
Significant-Non-Complier and initiated formal enforcement
action. The actual Consent Order was eventually issued in
June 1997, over three years after the original inspection.
Case VA10
This facility was 644 days out of compliance according to the
T&A list, with five violations found during an inspection
DEQ conducted in January 1995. Failing to return to
compliance after DEQ attempted informal enforcement, the
facility should have been classified as a High Priority
Violator in July 1995. Failing that, the facility should have
been classified as a Significant Non-Complier in April 1996,
with the issuance of the revised Enforcement Response
Policy.
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Case VA08
This facility was 411 days out of compliance according to the
T&A list, with six violations found during an inspection DEQ
conducted in September 1995. When the State reinspected
the facility in January 1997, it reported that two of the six
violations remained uncorrected. DEQ also reported that
there were several new violations that were similar to those
found during the September 1995 inspection, as well as
during a March 1994 inspection. Based on DEQ's findings,
this facility should have been classified as a Significant Non-
Complier.
Conclusion According to the 1996 Enforcement Response Policy, the
facilities discussed above should have been classified as
Significant Non-Compliers after 180 days of non-compliance.
However, Region III placed these facilities on the T&A lists
because their non-compliance exceeded 300 days. The use of
the 300-day criteria promotes untimely compliance, because
it does not encourage State Agencies, such as Virginia DEQ,
to make Significant Non-Complier classifications and formal
enforcement decisions at the 180-day mark, as prescribed in
EPA's 1996 Enforcement Response Policy.
Recommendations We recommend the Region III Administrator:
4.1 Cease the practice of issuing T&A lists to the States
for facilities out of compliance for 300 or more days.
4.2 Institute the practice of issuing T&A lists to the States
for facilities out of compliance at the 180-day mark,
and require the States to make a SNC determination
and take appropriate enforcement action.
Region Ill's The Region is currently issuing T&A reports to the states for
Response to both 180 and 300 days. The 300-day report allows the states
Recommendations to track progress towards issuance of final compliance
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agreements and compliance orders. As such, the Region
expects to continue providing both reports to the states.
OIG's Evaluation
of Region Ill's
Response
According to EPA's Enforcement Response Policy, facilities
that have had informal enforcement and remain out of
compliance for more than 180 days should be considered
Significant Non-Compliers and have formal enforcement
initiated against them. This is not currently being
accomplished by Region III. Therefore, our recommendations
remain unchanged.
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CHAPTER 5
MISSING RECORDS
Missing Data Region III did not adequately maintain official RCRA
enforcement and compliance files. Specifically, the
contractor responsible for custody of the files was unable to
provide certain documents pertaining to 10 of the 30
facilities in our sample taken from fiscal years 1996 and
1997 inspections conducted by the Region. The missing data
is as follows.
FACILITY NAME &
FACILITY ID NO.
INSPECTION
DATE
MISSING
DOCUMENTS
AllWaste Container Service
MDD981737521
09/25/96
Inspection
Report
Beltsville Agric. Res. Ctr. West
MD2120500119
09/25/96
Entire File
Beltsville Agric. Res. Ctr. East
MD0120508940
09/25/96
Files after
1990
Pepco Benning Generating Sta.
DCD000819516
04/28/97
Entire File
Anacostia Marina Inc.
DCD983968538
03/04/97
Inspection
Report
St. Elizabeth's Hospital
DC9751305997
06/03/97
Inspection
Report
USDA National Arboretum
DC7120507432
02/19/97
Inspection
Report
Garage 4134
PAR000016071
01/12/97
Inspection
Report
Steam town Nat'l. Historic Site
PAD987285715
04/14/97
Entire File
St. Mary's Refining Co.
WVD004337135
10/31/96
Inspection
Report
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In response to our position papers, the Region explained
that:
Based on discussions with the [contractor name
deleted] file room staff, for files listed as: no
inspection report in file; files did not physically exist
within the file room at the time of the audit since no
information was contained on the specific facilities in
the RCRIS data base. The contractor stated that this
was explained to the IG auditor but the auditor may
not have understood. Additionally, there were some
inspection reports that may not have been entered into
the file room system at the time of the audit.
For files listed as: cannot locate files; a check was
made by the contractor on the site specific files and
there was existing documentation showing who had
signed out the files (PAD987285715 signed out since
3/12/96). The contractor believed this information was
conveyed to the IG auditor during the audit.
The facility that was listed as: missing files after
1990; did not have files after 1990 because these files
were not listed in the RCRIS data base and therefore
did not exist in the file room at the time of the audit.
Regarding missing inspection reports, it should be pointed
out that the universe from which we sampled was RCRIS
information for fiscal years 1996 and 1997 inspections.
Therefore, if there is data in RCRIS, logic dictates that an
inspection should have been conducted. If there was an
inspection, there should have been an inspection report
placed in the official file and available for review.
Regarding missing files, on several occasions the custodial
contractor confirmed that there was no record that these files
had been checked out. We repeatedly followed up on this
issue with regional RCRA personnel over a period of months.
At no time were we informed that the files were available for
our review.
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The fact remains that it is a prudent business management
practice to maintain adequate custody over official files.
Region III is paying a contractor to perform this function in
the RCRA File Center. That there was such confusion over
whether documents and files exist or not, indicates that the
controls over these records are inadequate. The contractor
was unable to provide us with a third of the documents
requested. Finally, we would also point out that during our
visits to three individual DEQ offices, we obtained the files
for 146 inspections without incident.
Recommendations We recommend the Region III Administrator:
5.1 Establish adequate custody controls over official
RCRA files.
5.2 Conduct a management review of the contractor
responsible for the RCRA file room.
Region Ill's Region III concurs with our recommendations and will
Response to undertake a review to determine where these breakdowns
Recommendations have occurred. In addition, it already has a plan in place to
update all enforcement file information over the next six
weeks.
OIG's Evaluation EPA's response meets the intent of our recommendations,
of Region Ill's We ask that the Region provide us a copy of the results of its
Response review in order that we may close out this issue.
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APPENDIX A
GLOSSARY
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Glossary
CEI - Compliance Evaluation Inspection.
Class 1 Violation - The most serious type of RCRA violation, which is a deviation
from regulations or provisions of formal enforcement orders.
Class 2 Violation - Any violation of a RCRA requirement that does not meet the
criteria for Class I violations.
DEQ - For the purposes of this report, Virginia's Department of Environmental
Quality.
ERP - Enforcement Response Policy. Provides guidance for classifying violations,
selecting appropriate enforcement action in response to various RCRA violators,
and for taking Federal enforcement action in States with authorized programs.
Generator - Any person or business that produces hazardous waste or first causes
hazardous waste to become subject to RCRA regulations.
Hazardous Waste - Wastes that meet EPA's definition for solid waste and possess
the characteristics of ignitability, corrosivity, reactivity, or toxicity (as defined by
RCRA).
HPV - High Priority Violator. A category of violator that merits the most stringent
and immediate enforcement response. It is the 1987 ERP equivalent of a SNC for
which formal enforcement was required within 135 days of the inspection.
NVRO - Northern Virginia Regional Office of the Virginia DEQ, which is located in
Woodbridge, VA.
Permit - An official license that specifically allows a facility to treat, store, or
dispose of hazardous waste and outlines the precautions that must be taken to
manage the waste in a manner that adequately protects human health and the
environment.
Regulatory Agency - Either the EPA or State Agencies that are responsible for
implementing, monitoring, and enforcing the RCRA program.
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RCRA - Resource Conservation and Recovery Act. This Congressional Act
encourages environmentally sound methods for disposal of household, municipal,
commercial, and industrial waste.
RCRIS - Resource Conservation and Recovery Information System. The national
RCRA information system used by EPA for program management, regulation
development, and regulation enforcement.
SNC - Significant Non-Complier. The 1996 ERP classification which is used for
the most serious RCRA violators.
State Authorization - The process by which States are given authority to run the
RCRA program instead of EPA.
Subtitle C - The section of RCRA which establishes a regulatory framework for
managing the generation, storage, treatment, and disposal of certain wastes defined
as hazardous.
T&A List - A list of RCRA facilities which have not responded to State informal
enforcement actions and have been non-compliant for more than 300 days.
TIER I - The Region III quarterly meeting, which is held to determine the
appropriate enforcement action to take against RCRA violators.
TRO - Tidewater Regional Office of the Virginia DEQ, which is located in Virginia
Beach, VA.
TSDF - Treatment, Storage and Disposal Facility. Facilities that receive
hazardous waste from generators or other facilities for treatment, storage or
disposal of waste.
WCRO - West Central Regional Office of the Virginia DEQ, which is located in
Roanoke, VA.
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APPENDIX B
Region Ill's Response to Draft Report
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION III
1650 Arch Street
Philadelphia, Pennsylvania 19103-2029
August 9, 1999
SUBJECT: Response to Draft Audit Report on RCRA Identification
and Enforcement cro--«--r-—XTon-Compliers
]/\aaUjL
FROM: W. Michael McCat
Regional Administrator (bKAUUj
TO: Carl A. Jannetti
Divisional Inspector General for Audit (3AI00)
Thank you for the opportunity to provide comments on the above referenced
document. The draft audit report identifies several problem areas that we have
recognized as areas of concern and have already taken steps that should resolve or limit
the reoccurrence of the issues that you have raised. Our comments are as follows:
Response to Recommendations 2.1 to 2.3
Chapter 2 recommends that Virginia Department of Environmental Quality
(DEQ) should adhere to the procedures for identifying Significant Non-Compliers (SNC)
and take appropriate action as outlined in EPA's Enforcement Response Policy (ERP),
that DEQ escalate to formal enforcement when a facility is recalcitrant (rather than
continue compliance assistance) and DEQ be aware of how to refer potential Superfund
candidates to Region III. We agree with these recommendations in that we, along with
the Office of Enforcement, Compliance and Environmental Justice, have been working
with DEQ to review and finalize DEQ's ERP such that it is equivalent to EPA's.
With regard to escalation of enforcement actions, please recognize that many of
Region III states (including Virginia) do not have the ability to issue unilateral
complaints and therefore must rely on negotiated settlements for the majority of their
formal enforcement actions. Furthermore, some are required to exhaust all
administrative (informal) options before they can consider a referral to the state's
Attorney General's Office. As a result of these procedural restraints, we have allowed
the states the full 300 days provided for in the ERP to negotiate final administrative
orders that return the violating facility to compliance.
Virginia has indicated that its staff is aware of when and who to contact at EPA
when it believes it has a facility that may require action under Superfund. The DEQ,
however, was previously unaware that EPA must record the referral to Superfund in
Resource Conservation and Recovery Information System (RCRIS) to have the facility
removed from the Timely and Appropriate (T&A) list.
Customer Service Hotline: 1-800-438-2474
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Response to Recommendations 3.1 to 3.5
Chapter 3 identifies four (4) facilities where the Region did not "appropriately"
classify facilities as Significant Non-Compliers and did not take "timely" enforcement
action. These are areas that the Waste and Chemicals Management Division has also
identified as areas of concern. We recognize the importance of properly classifying
facilities that warrant a SNC determination and the need to take timely enforcement
actions. As such, we have taken actions to correct these perceived weaknesses in the
program. To ensure that SNC determinations are made for facilities that warrant such
a determination, we have included questions in our Tier I screening form that will
assist the Tier I Screening Panel in determining whether a facility has caused an actual
exposure or if there is a substantial likelihood of exposure to hazardous waste or
hazardous waste constituents; are chronic or recalcitrant violators or have deviated
substantially from the terms or requirements of a permit, order or from RCRA
statutory or regulatory requirements (see attached screening form). Once a
determination is made whether a facility should be classified as a Significant Non-
Compliers Yes or Significant Non-Compliers No, these designations will be updated in
RCRIS within five working days.
Regarding timely response, we recognize that we have some areas that need
improvement and we have taken steps to improve our ability to move facilities through
the pipeline in a more expeditious manner. Some of the changes we have made include:
/ Use of contractors to provide support during EPA-lead inspections. Contractors
provide support to RCRA staff when they conduct inspections. This allows the
staff to conduct more inspections and/or perform and prepare inspection reports
in a more timely manner.
/ Tier I Meetings have been held on a monthly basis since approximately March
1998. This has allowed us to screen cases on a more frequent basis, thereby
shortening the time required to make an enforcement response recommendation.
/ In December 1998, we added one additional FTE to the Branch in the Wheeling
Office. In addition to allowing the Region to have a greater presence in the
western part of the Region, this additional FTE will provide an additional
resource that can conduct inspections and process enforcement cases, thus
leading to a more timely response.
Others areas where we are looking to improve include:
/ Shortening the time frame in which inspection reports are received from the
Environmental Services Division (ESD). Over the past fiscal year, the RCRA
program received inspection reports from ESD approximately 45-60 work days
after the inspection date. We have signed a work plan with ESD's Office of
Environmental Programs that requires that inspection reports be submitted to
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the RCRA Enforcement Program within 45 calendar days after the completion of
the inspection.
/ We have developed a separate stand-alone data base that will allow us to track
the entire RCRA Enforcement Pipeline from targeting through completion of
compliance tasks required as a result of compliance orders. The system has
built-in tickler dates that will facilitate tracking of time frames described in the
ERP.
Regarding your recommendation that RCRA personnel receive RCRIS training
and that we establish data verification procedures, we recognize that this is an area
where we need to focus additional attention and have a number of actions ongoing
(some of which have already been described above) that should improve the quality of
EPA's RCRIS data. We now have a fully trained Senior Environmental Employment
Program person on board who is responsible for our inspection and program tracking
data and have dedicated an additional FTE as an Enforcement Program Manager that
would allow us to improve our oversight of the state data.1 We also have provided
RCRIS data entry training to each Compliance Officer at the end of fiscal years 1996,
1997, and 1998. We hope to extend this training to all data entry personnel to ensure
that the likelihood of a reoccurrence of data errors is minimized.
The examples that your audit found regarding violations unrecorded in RCRIS
are likely also the result of the enforcement staff not being able to substantiate
violations reported by the inspector. It is very common for the inspector to record
potential violations in their inspection reports that the enforcement staff cannot verify
or backup with the necessary evidence to prove a violation. Because of this, the
violations entered in RCRIS may not match the initial violations described in the
inspection report.
Response to Recommendations 4.1 and 4.2
Chapter 4 recommends that Region III cease issuing Timely and Appropriate
(T&A) reports to states for facilities out of compliance for 300 days or more and instead
issue T&A reports which identify those out of compliance facilities at the 180 day mark.
We are currently issuing T&A reports to the states for both 180 and 300 days. The 300
day report allows the states to track progress towards issuance of final compliance
agreements and compliance orders. As such, we expect to continue providing both
reports to the states.
i
This FTE was filled for approximately 1 month but has since become vacant and the division's FTE
cap has prevented us from backfilling this position at this time.
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Response to Recommendations 5.1 and 5.2
Chapter 5 recommends that the Region establish adequate custody controls over
official RCRA files and conduct a management review of the contractor responsible for
the RCRA file room. We agree with these recommendations and will undertake a
review to determine where these breakdowns have occurred. In addition, we already
have a plan in place to update all enforcement file information over the next six weeks.
Since the time of the audit, there have been very few complaints received about staff
inability to access facility files.
Conclusion
In summary, we have recognized many of the areas pointed out in the draft audit
report as matters that need to be addressed and have taken action to correct them.
Also, we have provided several clarifications which we hope you will incorporate into
your final report. If you have any questions regarding these comments, please contact
either Jim Webb at (215) 814-3169 or Harry Daw at (215) 814-3244 of my staff. Again,
thank you for the opportunity to provide our comments.
Attachment
cc: Tom Voltaggio (3DA00)
James Webb (3WC30)
Harry Daw (3WC31)
Mary Coe (3RC30)
Bill Early (3RC00)
Samantha Fairchild (3EC00)
Richard Pepino (3ES30)
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APPENDIX B
Virginia DEQ's Response to Draft Report
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COMMONWEALTH of VIRQINIA
James S. Gilmore, III
Governor
DEPARTMENT OF ENVIRONMENTAL QUALITY
Street address: 629 East Main Street, Richmond, Virginia 23219
Mailing address: P.O. Box 10009, Richmond, Virginia 23240
Fax (804) 698-4500 TDD (804) 698-4021
http://www.deq.state.va.us
Dennis H. Treacy
Director
John Paul Woodley, Jr.
Secretary ofNatural Resources
(804) 698-4000
1-800-592-5482
August 9, 1999
Mr. Carl A. Jannetti
Division Inspector General for Audit
United States Environmental Protection Agency
Office of Inspector General
Mid-Atlantic Division
1650 Arch Street
Philadelphia, PA 19103-2029
Dear Mr. Jannetti:
Thank you for the opportunity to review the draft audit report on "RCRA
Identification and Enforcement of Significant Non-Compliers," covering the federal
fiscal years 1996 and 1997. We are pleased that your report recognized the
appropriateness of DEQ's enforcement actions and the knowledge of our staff. We also
appreciate your recognition of DEQ's empowerment of inspectors and enforcement
specialists as a "best practice" for others to follow.
While DEQ may have differences of opinion or perspective regarding positions of
the report, we have addressed or are in the process of addressing each of the
recommendations to assure that all hazardous waste violations are properly classified
and handled. DEQ will continue to work with EPA Region III to assure that the
recommendations are fully implemented. Attached are specific responses to each of the
recommendations.
Very truly yours,
Enclosure
An Agency of the Natural Resources Secretariat
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Department of Environmental Quality
RCRA Identification and Enforcement of Significant Non-Compliers
Office of Inspector General - Draft Audit Report - June 30, 1999
Recommendations and Responses
Recommendations: We recommend that the Region III Administrator ensure that the
Virginia DEQ:
2.1 Adheres to the EPA Enforcement Response Policy; specifically, establish procedures
for identifying Significant Non-Compliers, and take appropriate enforcement
actions to ensure their timely return to compliance.
DEQ Response: Procedures for designating facilities as Significant Non-Compliers
(SNCs) are in place in DEQ Regional Offices, which have been delegated authority
over compliance and enforcement cases. Those offices have reviewed their pending
hazardous waste cases to confirm that violators have been designated as SNCs in
accordance with those procedures. In its current revision of the Enforcement
Manual, Virginia DEQ has established procedures for identifying SNCs, and for
taking appropriate enforcement actions to ensure their timely return to compliance,
consistent with EPA's Hazardous Waste Civil Enforcement Response Policy. DEQ
has provided EPA a copy of the current revision for information and comment. It
is DEQ's intent that adherence to the Enforcement Manual will ensure timely
return to compliance in accordance with EPA's expectations.
2.2 Escalate to formal enforcement when a facility is recalcitrant, rather than continue
"compliance assistance."
DEQ Response: It is DEQ's policy to escalate the enforcement activities when a
facility is recalcitrant and to reach a prompt conclusion to enforcement actions. The
draft Enforcement Manual establishes guidance and procedures to ensure that
cases involving recalcitrant facilities are escalated to formal enforcement in a timely
manner. Compliance assistance remains an important part of DEQ's efforts to
assure consistent compliance among the regulated community. However, when a
facility is recalcitrant, or when the environment or public health is at risk, DEQ will
escalate such cases to formal enforcement. The current revision of the Enforcement
Manual has been provided to EPA for information and comment.
2.3 Is aware how to refer facilities as possible Superfund candidates to Region III.
DEQ Response: DEQ maintains an Office of Remediation Programs (ORP) that
handles Superfund and other remediation issues and that continuously interacts
with the Superfund staff in EPA Region III. Sites are referred through the ORP (or
through the Virginia Department of Emergency Services) as possible candidates for
Superfund response action. Indeed, in July 1999, three sites were added to the final
list of sites on the National Priorities List. In addition, the procedure for site
evaluations under the Virginia Solid Waste Management Regulations specifically
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recognizes that sites with releases of hazardous substances may warrant federal
involvement.
To ensure that the staff are aware of the procedures for potential Superfund
involvement, DEQ has conducted cross-training for ORP and RCRA staff in
hazardous waste and Superfund issues. ORP is conducting additional training for
the staff in all media programs in each of the six DEQ Regional Offices.
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APPENDIX C
DISTRIBUTION
Office of Inspector General
Office of Inspector General (2421)
Divisional Office of Inspectors General
EPA Region III
Regional Administrator (3RA00)
Director, Waste and Chemicals Management Division (3WC00)
Director, Environmental Services Division (3ES00)
Chief, Grants and Audit Management Branch (3PM70)
Headquarters
Agency Audit Follow-up Coordinator (2724)
Agency Follow-up Official (2710)
Agency Audit Liaison (2201A)
Assistant Administrator for Enforcement and Compliance Assurance (2201A)
Assistant Administrator for Solid Waste and Emergency Response (5101)
Associate Administrator for Congressional and Intergovernmental Relations (1301)
Associate Administrator for Communications, Education, and Media Relations (1701)
Other
Virginia Department of Environmental Quality
General Accounting Office
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