f O
U.S. ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF INSPECTOR GENERAL
Hotline Report:
Ensuring clean and safe water
EPA Region 5 Needs to Act on
Transfer Request and Petition
Regarding Ohio's
Concentrated Animal Feeding
Operation Permit Program
Report No. 19-N-0154
May 15, 2019
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Report Contributors:
Khadija Walker
Julie Hamann
Jayne Lilienfeld-Jones
Abbreviations
CAFO
Concentrated Animal Feeding Operation
CFR
Code of Federal Regulations
EPA
U.S. Environmental Protection Agency
NPDES
National Pollutant Discharge Elimination System
OIG
Office of Inspector General
U.S.C.
United States Code
Cover Photo: A CAFO with dairy cattle. (U.S. Department of Agriculture, Natural Resources
Conservation Service photo)
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At a Glance
Why We Did This Project
The U.S. Environmental
Protection Agency (EPA) Office
of Inspector General (OIG)
received a hotline complaint
about the status of Ohio's
request to EPA Region 5 for
approval to transfer the
Concentrated Animal Feeding
Operation (CAFO) portion of its
National Pollutant Discharge
Elimination System (NPDES)
permit program from the Ohio
Environmental Protection
Agency (Ohio EPA) to the Ohio
Department of Agriculture.
EPA Region 5 Needs to Act on Transfer Request
and Petition Regarding Ohio's Concentrated
Animal Feeding Operation Permit Program
What We Found
EPA Region 5 has not made a decision regarding
Ohio's NPDES CAFO permit program transfer
request. The most recent request was made in 2015.
Regulations per 40 CFR § 123.62 specify the process
by which states may transfer all or part of their
NPDES program from one state agency to another.
However, these regulations do not establish timelines
for the EPA to review and approve or disapprove
such requests.
EPA Region 5's lack of
timely decisions on
program transfer
requests and petitions
leaves state programs
without clarity and
petitioners unaware of
petition status.
Based on the complainants'
concerns, the OIG identified the
following questions for review:
1. Has EPA Region 5 given
approval for Ohio's NPDES
CAFO permit program
transfer?
2. What actions has EPA
Region 5 taken in response
to a November 2011 citizen
petition regarding
withdrawing Ohio's CAFO
permit program?
This report addresses the
following:
• Ensuring clean and safe
water.
We found that although EPA Region 5 began an informal investigation of the
allegations raised in the citizen petition to commence withdrawal proceedings,
more than 8 years after the 2011 submission the region still had not made a
determination about the petition. When the EPA receives a citizen petition for
withdrawal, it may conduct a review of the allegations to determine whether
cause exists to prompt withdrawal proceedings per 40 CFR §123.64(b)(1), but
the regulations impose no timeline for action.
Recommendations and Planned Agency Corrective Actions
We recommend that the Region 5 Regional Administrator issue decisions
regarding (1) Ohio's request to transfer its NPDES program with respect to
CAFOs from the Ohio EPA to the Ohio Department of Agriculture and (2) the
citizen petition to withdraw Ohio's NPDES CAFO program and related permitting
authority. EPA Region 5 agreed with the OIG recommendations, and the
recommendations are resolved with corrective actions pending. Region 5 officials
already have begun to take corrective actions to address the recommendations
and plan to complete them by March 31, 2020.
Address inquiries to our public
affairs office at (202) 566-2391 or
OIG WEBCOMMENTS@epa.gov.
List of OIG reports
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF
INSPECTOR GENERAL
May 15, 2019
MEMORANDUM
SUBJECT: Hotline Report:
EPA Region 5 Needs to Act on Transfer Request and Petition Regarding
Ohio's Concentrated Animal Feeding Operation Permit Program
Report No. 19-N-0154
FROM: Charles J. Sheehan, Deputy Inspector General
TO:
Cathy Stepp, Regional Administrator
EPA Region 5
This is our report on the subject assignment conducted by the Office of Inspector General (OIG) of the
U.S. Environmental Protection Agency (EPA). The project number for this assignment was
OA&E-FY 19-0038. 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 audit resolution procedures.
The EPA Region 5 Regional Administrator is responsible for the issues discussed in this report.
In accordance with EPA Manual 2750, your office provided acceptable corrective actions and milestone
dates in response to OIG recommendations. All recommendations are resolved and no final response to
this report is required. However, if you submit a response, it will be posted on the OIG's website, along
with our memorandum commenting on your response. Your 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. The final response should not contain data that you do not want to be released to the
public; if your response contains such data, you should identify the data for redaction or removal along
with corresponding justification.
We will post this report to our website at www.epa.gov/oig.
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EPA Region 5 Needs to Act on Transfer Request
and Petition Regarding Ohio's Concentrated
Animal Feeding Operation Permit Program
19-N-0154
Table of C
Purpose 1
Background 1
Responsible Office 2
Scope and Methodology 2
Results 2
Ohio N PDES Transfer Request 2
Citizen Petition 3
Conclusion 3
Recommendations 3
Agency Response and OIG Evaluation 4
Status of Recommendations and Potential Monetary Benefits 5
Appendices
A Agency Response 6
B Distribution 10
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Purpose
The U.S. Environmental Protection Agency (EPA) Office of Inspector General
(OIG) initiated this project to address a July 2018 hotline complaint regarding the
state of Ohio's National Pollutant Discharge Elimination System (NPDES)
program implementation for Concentrated Animal Feeding Operations (CAFOs).
The hotline complainants expressed concerns regarding the Ohio Governor's
request to EPA Region 5 to approve the transfer of the CAFO portion of the
NPDES permit program to the Ohio Department of Agriculture. Currently, the
EPA authorizes the Ohio Environmental Protection Agency (Ohio EPA) to
oversee the NPDES program, including CAFOs. The complainants also asked the
OIG to determine the status of an associated citizen petition requesting that the
EPA withdraw approval of Ohio's NPDES program with respect to CAFOs.
Based on the complainants' concerns, the OIG identified the following questions
for review:
1. Has EPA Region 5 given approval for Ohio's NPDES CAFO permit
program transfer to the Ohio Department of Agriculture?
2. What actions has EPA Region 5 taken in response to the November 2011
citizen petition regarding Ohio's CAFO permit program?
Background
The EPA granted the Ohio EPA authorization to administer the NPDES program
in 1974. In 2006, the Ohio Governor submitted a transfer request to EPA
Region 5 pursuant to 40 CFR § 123.62. In that transfer request, the Governor
asked that EPA Region 5 allow the Ohio Department of Agriculture to administer
the part of the NPDES program pertaining to CAFOs and
discharges of stormwater resulting from industrial and
construction activity at animal feeding operations. Under
this plan, the Ohio EPA would continue to oversee all
other portions of the NPDES program. According to EPA
Region 5 staff, this 2006 transfer request lacked required
information and EPA Region 5 had to request more
documentation.
In 2015 the Ohio Governor submitted a second request.1
This request reflected statutory and regulatory revisions
the Ohio legislature implemented between 2009 and 2014 in an effort to conform
its proposed NPDES program with applicable federal requirements. The request
proposed two new Memorandums of Agreement—one between state agencies and
the other between the state of Ohio and EPA Region 5. The request also included
1 The Governor officially withdrew the 2006 request in May 2017.
A dairy CAFO. (EPA OIG photo)
19-N-0154
1
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a new program description and a new statement of legal authority from the Ohio
Attorney General.
In a separate but related matter, in 2011, three Ohio residents submitted a petition
to EPA Region 5 to withdraw Ohio's NPDES program for CAFOs. The
petitioners expressed a range of concerns regarding Ohio's oversight of CAFO
discharges and related activities. To date, EPA Region 5 has not formally
addressed this petition.
Responsible Office
The EPA Region 5 Regional Administrator is responsible for the issues discussed
in this report.
Scope and Methodology
We conducted our work from November 2018 through March 2019. During that
time, we interviewed EPA Region 5 and headquarters staff involved with both the
Ohio transfer request and the citizen petition. We reviewed EPA Region 5
documents related to both issues. We did not review Ohio's NPDES CAFO
program or its permits. We did not conduct this assignment in accordance with
generally accepted government auditing standards.
Results
Ohio NPDES Transfer Request
EPA Region 5 has not made a decision regarding the Ohio transfer request. The
EPA regulation, 40 CFR § 123.62, specifies the process by which states may seek
to transfer all or part of their NPDES program from one state agency to another.
While EPA regulations expressly establish timelines for numerous regulatory
actions in the context of state NPDES program administration, they do not
establish timelines for the EPA to review and approve or disapprove transfer
requests.2 Despite the absence of regulatory time frames, long-term delay is not a
viable option. The Administrative Procedure Act requires that agencies move to
conclude matters presented to them "within a reasonable time."3
According to EPA Region 5 staff, since Ohio submitted its amended 2015 transfer
request, EPA Region 5 has had regular and frequent communication with the state
about information needed to reach a determination. Further, EPA Region 5 staff
reported they have faced several challenges inhibiting them from coming to a
timely determination. Some of these include the 2008 CAFO regulatory revisions
2 40 CFR § 123.61.
3 5U.S.C. § 555(b).
19-N-0154
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and EPA Region 5 staff turnover that has limited the resources available to review
the request.
Citizen Petition
We found that although EPA Region 5 began an informal investigation of the
allegations raised in the 2011 citizen petition, the region still has not officially
responded to the petition (more than 8 years after the submission). When the
agency receives a citizen petition for withdrawal under 40 CFR § 123, the EPA
may conduct an informal investigation of the allegations to determine whether
cause exists to prompt withdrawal proceedings,4 but the regulations impose no
timeline on the Administrator to respond to the petition.
Conclusion
EPA Region 5's delay in timely addressing these two matters has created
uncertainty for the state and the regulated community. According to EPA Region
5 staff, public interest in the citizen petition and transfer request has resulted in
additional work to address Freedom of Information Act requests, a civil action
initiated by citizens pursuant to Section 505 of the Clean Water Act, and a
subsequent appeal related to the proposed transfer.
EPA Region 5 has allowed years to lapse without a determination on Ohio's
transfer request or to address the citizen petition. We believe that the region's
longstanding delay on these issues has impacted federal and state oversight and
has created regulatory uncertainty with respect to CAFOs in the state of Ohio.
Recommendations
We recommend that the Regional Administrator, EPA Region 5:
1. Issue a decision regarding Ohio's request to transfer from the Ohio
Environmental Protection Agency to the Ohio Department of Agriculture
its National Pollutant Discharge Elimination System program with respect
to Concentrated Animal Feeding Operations and other elements of the
program.
2. Issue a decision regarding the citizen petition to withdraw Ohio's National
Pollutant Discharge Elimination System program with respect to
Concentrated Animal Feeding Operations and related permitting authority.
4 40 CFR § 123.64(b)(1).
19-N-0154
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Agency Response and OIG Evaluation
On April 4, 2019, the OIG issued a memorandum to Region 5 documenting its
findings and recommendations. On April 18, 2019, the Regional Administrator,
Region 5, provided comments in response to the OIG's memorandum. Region 5
officials concurred with the two OIG recommendations and provided planned
actions and completion dates. These actions include discussions between EPA and
Ohio representatives regarding Ohio's proposed NPDES transfer request resulting
in a decision regarding the transfer request and providing a written response to the
citizen petition to withdraw.
Since this review commenced, Region 5 officials have begun to address the OIG's
recommendations. Region 5 staff met with Ohio EPA and Department of
Agriculture representatives on March 21, 2019, to discuss these issues. On
April 16, 2019, the EPA and Ohio began biweekly calls to discuss the transfer
request.
The recommendations are resolved with corrective actions pending. Region 5
plans to complete the corrective actions by March 31, 2020. The agency's full
response is in Appendix A.
19-N-0154
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Status of Recommendations and
Potential Monetary Benefits
RECOMMENDATIONS
Rec.
No.
Page
No.
Subject
Status1
Action Official
Planned
Completion
Date
Potential
Monetary
Benefits
(in $000s)
1
3
Issue a decision regarding Ohio's request to transfer from the
Ohio Environmental Protection Agency to the Ohio Department
of Agriculture its National Pollutant Discharge Elimination
System program with respect to Concentrated Animal Feeding
Operations and other elements of the program.
R
Regional Administrator,
EPA Region 5
12/31/19
2
3
Issue a decision regarding the citizen petition to withdraw Ohio's
National Pollutant Discharge Elimination System program with
respect to Concentrated Animal Feeding Operations and related
permitting authority.
R
Regional Administrator,
EPA Region 5
3/31/20
C = Corrective action completed.
R = Recommendation resolved with corrective action pending.
U = Recommendation unresolved with resolution efforts in progress.
19-N-0154
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Appendix A
Agency Response
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Response to Recommendations:
Region 5 concurs with the two recommendations included in the Draft Report.
Region 5 recommends that the first recommendation be edited to reflect that ODA is seeking to
administer the portion of the NPDES program pertaining to discharges of storm water resulting
from industrial activity and construction activity at animal feeding operations in addition to the
portion of the program pertaining to CAFOs.
Clarifying Information Regarding the Report Findings:
Region 5 offers the following comments regarding the findings in the draft report.
1. The Draft Report does not convey that the Governor of Ohio has submitted two separate and
distinct requests to transfer a portion of the NPDES program from Ohio EPA to ODA. The first
request was dated December 28, 2006 (2006 Request) and the second request was dated July 8,
2015 (2015 Request).
The 2015 Request incorporated work Ohio conducted between 2009 and 2014 to enact and adopt
statutory and regulatory revisions in an effort to conform its proposed NPDES program with the
applicable federal requirements. In addition to the statutory and regulatory updates, the 2015
Request also includes new Memoranda of Agreement (MOA) between state agencies, a new
proposed MOA between the State of Ohio and Region 5, a new program description, and a new
statement of legal basis from the Ohio Attorney General. Region 5 is currently reviewing the
2015 Request to determine whether the request represents a complete NPDES program as the
Governor withdrew the 2006 Request by letter dated May 18, 2017. Therefore, no further action
will be taken by Region 5 on the 2006 Request.
2. The first paragraph of the Background section of the Draft Report states: "Ohio EPA asked
that EPA Region 5 allow the Ohio Department of Agriculture to administer the part of the
NPDES program pertaining to CAFOs." Both the 2006 and 2015 Requests for EPA approval of
the transfer were made by the Governor of Ohio, not Ohio EPA. Also, ODA is seeking to
administer the portion of the NPDES program pertaining to discharges of storm water resulting
from industrial activity and construction activity at animal feeding operations, in addition to the
portion of the program pertaining to CAFOs.
3. Regarding the bulleted list of challenges identified in the Results section of the Draft Report,
the following comments are offered.
¦ The first bullet is accurate with regard to the 2006 Request. Regarding the 2015 Request,
Region 5 is re-engaging in discussions with ODA to inform Region 5's decision.
¦ The second bullet does not fully explain the revisions or circumstances which led to
Ohio's submission of a new request. Specifically, this does not clarify that the 2015
Request incorporated work Ohio conducted between 2009 and 2014 to enact and adopt
statutory and regulatory revisions in an effort to conform its proposed NPDES program
with the applicable federal requirements.
19-N-0154
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¦ The third bullet is accurate with regard to the 2015 Request. The third bullet is not
applicable to the 2006 Request.
4. In the first sentence of the second paragraph of the Citizen Petition section, it is stated that
Region 5 has decided to answer the citizen petition "after" the region resolves the transfer
request. Although there is some common subject matter, Region 5 considers the 2015 Request
and the citizen petition to be two separate matters, and action on one is not necessarily dependent
upon action on the other. The current schedule for both matters is described below.
5. In the last sentence of the second paragraph of the Citizen Petition section, it is stated that
"public interest in the citizen petition and transfer request has resulted in additional regional
work with Freedom of Information Act requests and meetings between the agency and the state."
Region 5 agrees that public interest has resulted in additional regional work with Freedom of
Information Act requests; however, Region 5 is not aware of public interest significantly causing
additional meetings between the agency and the state. It should be noted in the Draft Report that
a civil action commenced by citizens pursuant to Section 505 of the Clean Water Act, and a
subsequent appeal, related to the proposed transfer, resulted in additional work and delays. EPA
and the State of Ohio worked on that matter from late 2014 to early 2016.
Planned Action and Completion Dates:
The first recommendation included in the Draft Report is for Region 5 to issue a decision
regarding Ohio's request to transfer. The following are the actions Region 5 plans to take and
planned completion dates.
¦ Discussion between EPA and Ohio via phone calls or meetings. These discussions will
help inform EPA's decision on whether ODA's proposed program conforms with
applicable federal requirements. The planned completion date is dependent on Ohio
clarifying and making a final decision in a timely manner on how its program would be
structured. Planned completion date: September 2019
¦ Region 5 correspondence to ODA transmitting what additional steps Ohio, if any, must
make to conform with applicable federal requirements. Planned completion date:
December 2019
¦ Due to the ongoing discussions, as well as issues that could arise as a part of the public
participation process required if EPA makes a preliminary decision to approve the
transfer, it is not possible to project with certainty a final action date on Ohio's program
transfer request.
The second recommendation included in the Draft Report is for Region 5 to issue a decision
regarding the citizen petition to withdraw. The following are the actions Region 5 has identified
for completion to reach a final decision. Planned completion dates, based upon current
workforce planning, are identified for all EPA actions.
¦ Region 5 completes informal investigation. Planned completion date: October 2019
¦ Region 5 consultation with Office of Regional Counsel (ORC), Office of Water (OW)
and Office of General Counsel, and if appropriate, Office of Enforcement and
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Compliance Assurance, on outcome of informal investigation. Planned completion date:
January 2020
¦ Region 5 response to citizen petition to withdraw. Planned completion date: March 2020
Corrective Actions Already Initiated:
With regard to the 2015 Request, representatives from OW, Region 5 Office of the Regional
Administrator, Region 5 Water Division, and ORC met with representatives from Ohio EPA and
ODA on March 21, 2019 to discuss the process to move forward on the 2015 Request. Since this
meeting, two staff level conference calls have been held to discuss logistics of future discussions
and the process for sharing information between EPA and Ohio. Bi-weekly calls between EPA
and Ohio to discuss questions identified during EPA's review of the 2015 Request began on
April 16, 2019.
With regard to the citizen petition, Region 5 will resume work to complete its informal
investigation in accordance with the planned completion dates above.
Contact Information:
If you have any questions regarding this response, please contact Russ Rasmussen at (312) 886-
7535.
cc: Eric Levy, RMD-OC, MF-10J
19-N-0154
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Distribution
The Administrator
Associate Deputy Administrator and Chief of Operations
Chief of Staff
Deputy Chief of Staff
Assistant Administrator for Water
Regional Administrator, Region 5
Agency Follow-Up Official (the CFO)
Agency Follow-Up Coordinator
General Counsel
Associate Administrator for Congressional and Intergovernmental Relations
Associate Administrator for Public Affairs
Deputy Assistant Administrator for Water
Principal Deputy Assistant Administrator for Water
Deputy Regional Administrator, Region 5
Director, Water Division, Region 5
Director, Office of Continuous Improvement, Office of the Administrator
Audit Follow-Up Coordinator, Office of the Administrator
Audit Follow-Up Coordinator, Office of Water
Audit Follow-Up Coordinator, Region 5
19-N-0154
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