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Report Contributors: Tina Lovingood
Patrick Milligan
Rodney Rice
Kate Robinson
Abbreviations
AOC
Administrative Order on Consent
CD
Consent Decree
CERCLA
Comprehensive Environmental Response, Compensation, and Liability Act
CERCLIS
Comprehensive Environmental Response, Compensation, and Liability
Information System
EPA
U.S. Environmental Protection Agency
OECA
Office of Enforcement and Compliance Assurance
OIG
Office of Inspector General
OSRE
Office of Site Remediation Enforcement
PRP
Potentially Responsible Party
SEMS
Superfund Enterprise Management System
SNC
Substantial Noncompliance
UAO
Unilateral Administrative Order
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* > U.S. Environmental Protection Agency 20-P-0011
i? Y0 nf Incna^nr October 24, 2019
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\ Office of Inspector General
ฎ I
At a Glance
Why We Did This Project
We evaluated whether the
U.S. Environmental Protection
Agency (EPA) enforced
Potentially Responsible Parties'
(PRPs') compliance with EPA
Superfund Comprehensive
Environmental Response,
Compensation, and Liability Act
(CERCLA) Response
Settlements and Unilateral
Response Orders.
Under its CERCLA authority,
the EPA can employ Superfund
enforcement instruments to
require PRPs to address
environmental contamination at
Superfund sites. The EPA is
responsible for enforcing the
terms specified in enforcement
instruments and for taking
action when violations occur.
The EPA monitors violations of
enforcement instruments when
the violations amount to
Substantial Noncompliance
(SNC).
This report addresses the
following:
Cleaning up and
revitalizing land.
While EPA Regions Enforce at Six Superfund Sites Reviewed,
Four of Those Sites Remain in Significant Noncompliance, and
Nationwide Reporting and Tracking Can Be Improved
Address inquiries to our public
affairs office at (202) 566-2391 at
OIG WEBPOSTINGS@epa.gov.
List of OIG reports.
What We Found
EPA regions we reviewed were enforcing for
all six of our sampled sites. However, four of
those sites remained in significant
noncompliance. Additionally, the EPA's
ineffective tracking of SNC for Superfund
enforcement instruments limited headquarters'
ability to measure whether, and how well, the
regions were addressing noncompliance at
sites.
The effectiveness of EPA
headquarters' oversight of
enforcement at Superfund
sites was limited as
headquarters was not aware
of all SNCs and thus could
not assess adequacy of
regional actions.
As of May 2018, there were 1,625 active Superfund enforcement instruments
nationwide. The EPA's Office of Enforcement and Compliance Assurance was
aware of 50 enforcement instruments in SNC, which represented 3 percent of
active enforcement instruments, suggesting that 97 percent were in compliance.
However, that level of compliance for our sample was overstated, as four of the
six enforcement instruments we reviewed were erroneously coded as "Not in
SNC" when they should have been coded as "In SNC." We found that the
guidance for tracking and monitoring noncompliance allows for overly subjective
determinations of SNCs, and EPA headquarters did not use the compliance
reports to thoroughly monitor compliance with enforcement instruments
nationally.
Headquarters oversight is critical in cases where PRPs have liabilities in more
than one region. Without appropriate oversight, headquarters' awareness of all
PRP liabilities and possible inabilities to pay for cleanup is limited. This situation
could lead to increased expenditures from the Superfund trust fund to pay for
cleanups, resulting in less Superfund money being available for other sites.
Cleanups can also be delayed when negotiations slow or stall, thereby extending
human health exposures.
Recommendations and Planned Agency Corrective Actions
We recommend that the Assistant Administrator for Enforcement and
Compliance Assurance revise guidance on the tracking and monitoring of SNC
to better define "In SNC" and "Not in SNC"; require correction of SNC status
where designations are inaccurate; communicate to regions the clarified
guidance on proper designations of SNC and how to report them; remind regions
to correct and update compliance data as appropriate for all active enforcement
instruments; and develop, document and assign the roles and responsibilities of
headquarters staff for oversight of monitoring noncompliance with Superfund
enforcement instruments. The agency agreed with the recommendations, which
are resolved with corrective actions pending.
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF
INSPECTOR GENERAL
October 24, 2019
MEMORANDUM
SUBJECT: While EPA Regions Enforce at Six Superfund Sites Reviewed,
Four of Those Sites Remain in Significant Noncompliance, and
Nationwide Reporting and Tracking Can Be Improved
Report No. 20-P-0011
FROM: Charles J. Sheehan, Acting Inspector General
TO: Susan Parker Bodine, Assistant Administrator
Office of Enforcement and Compliance Assurance
This is our report on the subject audit 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-FY18-0215. This report contains findings that describe the problems the OIG has identified and
corrective actions the OIG recommends. This report represents the opinion of the OIG and does not
necessarily represent the final EPA position. Final determinations on matters in this report will be made
by EPA managers in accordance with established resolution procedures.
The Office of Land and Emergency Management is responsible for the EPA's Superfund cleanup
program. The Office of Enforcement and Compliance Assurance is responsible for enforcement of the
Superfund program, and its Office of Site Remediation Enforcement tracks active enforcement activities
throughout the 10 EPA regions.
In accordance with EPA Manual 2750, your office provided acceptable corrective actions and milestone
dates in response to our recommendations. Our 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.
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We will post this report to our website at www.epa.gov/oig.
-------
While EPA Regions Enforce at Six Superfund Sites Reviewed,
Four of Those Sites Remain in Significant Noncompliance,
and Nationwide Reporting and Tracking Can Be Improved
20-P-0011
Table of C
Chapters
1 Introduction 1
Purpose 1
Background 1
Responsible Offices 4
Scope and Methodology 4
Prior Report 5
2 Ineffective Tracking of Superfund Enforcement Instruments
Limits Oversight 6
Regions Took Enforcement Actions
but Ineffectively Reported Compliance 6
Enforcement Roles for Regions and Headquarters Need to Be
More Clearly Defined 8
Headquarters Oversight Critical for Consistent Tracking of
National Enforcement 8
Conclusions 9
Recommendations 9
Agency Response and OIG Evaluation 10
Status of Recommendations and Potential Monetary Benefits 11
Appendices
A Agency Response to Draft Report and OIG Comment 12
B Distribution 18
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Chapter 1
Introduction
Purpose
The purpose of this audit was to determine whether the U.S. Environmental
Protection Agency (EPA) is enforcing Potentially Responsible Parties' (PRPs')
compliance with EPA Superfund Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) Response Settlements and
Unilateral Response Orders.1
Background
CERCLA provides the EPA with the authority to employ Superfund enforcement
instruments to require PRPs to address environmental contamination at Superfund
sites. The EPA is responsible for enforcing the terms specified in Superfund
enforcement instruments, including taking action when violations occur. The EPA
primarily uses three types of enforcement instruments to oversee PRPs:
Administrative Order on Consent (AOC): An AOC2 is a legal
document that formalizes an agreement between the EPA and one or more
PRPs. The agreement obligates some or all of the parties responsible for a
site to conduct response activity and/or reimburse the government's
response costs.
Consent Decree (CD): A CD is a legal agreement entered into by the
United States (through the EPA and Department of Justice) and PRPs and
entered by a court.
Unilateral Administrative Order (UAO): If the PRPs do not agree to
perform the cleanup work or fail to satisfactorily perform the work through
an AOC or CD, the EPA can order parties to perform cleanup work under a
UAO and may subsequently seek to recover from the PRPs any money that
the agency spends on the cleanup. The EPA can also issue a UAO when it
finds there may be an imminent and substantial endangerment to the public
health or the environment. The EPA prefers to use AOCs and CDs when
possible.
1 For purposes of this report. Response Settlements and Unilateral Response Orders will be referred to as enforcement
instruments. In addition Unilateral Response Orders also are referred to as Unilateral Administrative Orders.
2 In recent years, the EPA generally lias re-styled these instruments as Administrative Settlement Agreements and
Orders on Consent. For purposes of this report, the terms AOCs, Administrative Settlement Agreements and Orders
on Consent are treated as synonymous.
20-P-0011
1
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Further details on these three instruments are in Table 1.
Table 1: Types of enforcement instruments
Instrument
Requires PRP
agreement?
Requires
court
approval?
Type of work conducted
under instrument
AOC
Yes
No
Short-term cleanup
Investigation
Remedy design work
Reimbursement for costs
CD
Yes
Yes
Longer-term cleanup work
UAO
No
No
Work to address imminent and
substantial endangerment
EPA overtakes cleanup work
when PRPs are unwilling to
comply with the UAO
Source: Created by the Office of Inspector General (OIG) based on EPA documents.
The Superfund Enterprise Management System (SEMS) is the EPA's official
repository for Superfund data and electronic records in support of CERCLA. EPA
headquarters uses SEMS data as the basis for tracking, managing and reporting
accomplishments and compliance on national program performance. The primary
focus of a SEMS compliance tracking report is to monitor enforcement
instruments that require parties to perform work. During this audit, we reviewed
enforcement instruments at sites we sampled.
There are two categories of compliance for purposes of compliance tracking and
determining whether and how to enforce and aiding headquarters' oversight
regarding instances of Substantial Noncompliance (SNC):
"Not in SNC": Instruments that have no violations or only less significant
violations.
"In SNC": Instruments that have more significant violations, including
significant deviation from the enforcement instrument or chronic
violation.
Regions are expected to document violations of enforcement instruments and
work with violators to return to compliance without regard to whether the
violations constitute SNC.
Definitions of SNC for CERCLA enforcement instruments are in Table 2.
20-P-0011
2
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Table 2: Definitions of SNC for CERCLA enforcement instruments
1. Significant deviation from the terms of the enforcement instrument:
A determination of significant deviation may be based on one or more of the
following factors:
Importance of the requirement violated and the extent of the violation.
Impact on site conditions or the affected community.
Impact on the quality or timeliness of response activities.
Harm to the integrity of the enforcement process.
Impact on site costs or the level of oversight required.
2. Chronic violations:
A determination that multiple violations cumulatively constitute a pattern of
chronic violation may be based on one or more of the following factors:
Importance of the requirements violated and the extent of the violations.
Impact on site conditions or the affected community.
Impact on the quality or timeliness of response activities.
Harm to the integrity of the enforcement process.
Impact on site costs or the level of oversight required.
3. Other:
Noncompliance not encompassed within the preceding criteria but which the region
deems substantial. A written description of the circumstances constituting SNC
should be prepared.
Source: Excerpt from the August 2009 Guidance on Determining and Tracking Substantial
Noncompliance with CERCLA Enforcement Instruments in CERCLIS. ["CERCLIS" stands for
"Comprehensive Environmental Response, Compensation, and Liability Information System."]
According to the EPA's August 2009 Guidance on Determining and Tracking
Substantial Noncompliance with CERCLA Enforcement Instruments in CERCLIS
(the most recent guidance we identified that defines SNC), when site-specific
questions arise about the definition of SNC, appropriate EPA Office of Site
Remediation Enforcement (OSRE) personnel should be consulted. OSRE is
within the Office of Enforcement and Compliance Assurance (OECA).
OSRE officials designate a regional liaison from the office's Regional Support
Division and a regional analyst from the office's Policy and Program Evaluation
Division for each EPA region. The liaisons and analysts are provided with
quarterly compliance monitoring reports and are asked, among other things, to:
(a) check with their regions to update the status of any enforcement instruments
that are "In SNC" for two or more quarters and have not been addressed by
formal enforcement; and (b) check whether violations of enforcement instruments
that OSRE has become aware of have been listed as "In SNC" and, if not, suggest
to the region that they should be.
There are several key enforcement compliance tracking reports in SEMS that are
managed and used by OSRE to track active enforcement activities throughout the
10 EPA regions. These include a report listing UAOs and AOCs that have been
issued, and another report that lists all of the enforcement instruments nationwide
20-P-0011
3
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including compliance status. These reports provide OSRE an awareness of
enforcement actions taken by the regions.
To help maintain enforcement consistency among the regions, OSRE issued
guidance that establishes the roles and responsibilities of headquarters and the
regions for various areas of Superfund enforcement, including PRP SNC. One
purpose of the guidance is to promote headquarters' review of
penalties/settlements for noncompliance with settlements and agreements in order
to maintain consistency among regions.
Superfund penalties and damages can include statutory penalties, stipulated
penalties and treble damages:
There are a variety of Superfund statutory penalty provisions that may
apply if a PRP does not comply with the requirements of a settlement
agreement.
Stipulated penalties occur when the parties agree within a settlement
agreement what the penalty will be for a certain type of noncompliance.
While the agency strongly encourages use of stipulated penalty provisions
in CDs, stipulated penalties also are employed in administrative orders.
Treble damages refer to the EPA's ability to recover punitive damages of
up to three times the costs from PRPs that did not comply with a UAO.
According to the EPA, the following criteria must be considered in determining
penalties: (1) penalties should be large enough to serve as a deterrent,
(2) penalties should be fair and equitable, and (3) penalties should provide a swift
resolution to the environmental problems posed by the noncompliance at issue.
Responsible Offices
The Office of Land and Emergency Management is responsible for the EPA's
Superfund cleanup program. OECA is responsible for enforcement of the
Superfund program. Within OECA, OSRE tracks active enforcement activities
throughout the 10 EPA regions.
Scope and Methodology
We conducted our audit from May 2018 to July 2019, in accordance with
generally accepted government auditing standards. Those standards require that
we plan and perform the audit to obtain sufficient, appropriate evidence to
provide a reasonable basis for our findings and conclusions based on our audit
objective. We believe that the evidence obtained provides a reasonable basis for
our findings and conclusions based on our audit objective.
20-P-0011
4
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To address our audit objective, we reviewed documents and interviewed regional
and headquarters staff for evidence of agency actionssuch as referrals to the
Department of Justice, notices of violation, etc.to achieve compliance with the
terms and conditions of the enforcement instruments. We reviewed prior reports
related to Superfund enforcement and cleanup. We also reviewed SEMS, which
contained key enforcement documents such as AOCs and UAOs, key cleanup
documents, and correspondence between the EPA and PRPs and between the EPA
and the Department of Justice. We reviewed several OSRE tracking reports
spanning multiple years to help us gain a national perspective on active
enforcement instruments.
We selected six sites to review that each included one of the following criteria: (1)
enforcement instruments that had been "In SNC" and then removed from "In
SNC" but were still active, (2) enforcement instruments that were "In SNC" for a
significant period of time and (3) response actions that were enforced under a
UAO where the UAO was still active but had never been "In SNC."
We interviewed managers, staff and officials from remediation/removal programs
and regional counsel in EPA Regions 2, 4, 6 and 7 to discuss overall enforcement
of sites, enforcement of instruments at the sites we sampled, and the regions'
coordination and communication with OSRE. In addition, we interviewed
officials from OSRE to discuss that office's involvement with the regions and
oversight of regional enforcement actions. We also interviewed officials from the
Office of Superfund Remediation and Technology Innovation to discuss its role in
enforcement cases.
We reviewed various criteria, including those found in the EPA's Guidance on
Determining and Tracking Substantial Noncompliance with CERCLA
Enforcement Instruments in CERCLIS, August 2009; and the 2011 Transmittal
"Superfund Compliance Monitoring Measure " Definition/Methodology for
Incorporation into Superfund Program Implementation Manual (SPIM) for
FY2012.
Prior Report
An April 28, 2008, EPA OIG report, EPA Needs to Track Compliance with
Superfund Cleanup Requirements (Report No. 08-P-0141 ) relates to the objective
and findings of our audit. The report made four recommendations to improve the
reporting of SNCs nationwide. The EPA agreed with the recommendations and
took corrective actions to improve the reporting of SNCs and the overall reporting
of compliance data. Our work identified some of these reporting improvements
through our review of the compliance tracking reports provided by OECA.
20-P-0011
5
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Chapter 2
Ineffective Tracking of Superfund Enforcement
Instruments Limits Oversight
The four EPA regions we reviewed were enforcing for all of our six sampled
sites. However, significant noncompliance remains at four of the six sites we
reviewed. Additionally, the EPA's ineffective tracking of SNC with respect to
Superfund enforcement instruments limited headquarters' ability to measure
whether, and how well, the regions were addressing and enforcing against
noncompliance at sites generally. The guidance for tracking and monitoring
noncompliance allows for overly subjective determinations of SNC, and
headquarters did not use the compliance reports to thoroughly monitor
compliance with Superfund instruments nationally. The EPA's compliance was
overstated to us as four of the six instruments we reviewed should have been
coded "In SNC" but were not. As a result, headquarters is limited in
implementing consistent enforcement across the nation and a level playing field
for the regulated community. Further, because the effectiveness of headquarters'
oversight was limited and it was not aware of all SNCs, headquarters could not
assess the adequacy of regional actions against noncompliant PRPs and assist
when appropriate.
Regions Took Enforcement Actions but Ineffectively Reported
Compliance
While the EPA regions we reviewed (Regions 2, 4, 6 and 7) were enforcing the
instruments for all of our six sampled sites, they did not effectively report
compliance status for five of the sites we reviewed. When appropriate, the EPA
included penalty and damage stipulations in the enforcement instruments. The EPA
did not effectively report compliance status because the guidance for tracking and
monitoring noncompliance allows for overly subjective determinations of SNC.
Four of the six sites reviewed had PRPs that did not perform portions of the
required work detailed in the Superfund enforcement instruments, and none of
these were reported in the May 20183 SNC report from headquarters. The regions
tried to resolve the issues informally, but if these efforts were not successful the
regions used other enforcement mechanisms (e.g., notice of deficiency or referral to
the Department of Justice).
SNC Designations Were Not Consistently Identified by Regions
Regions were inconsistent in identifying, defining and reporting SNCs. Staff in
one region stated that an enforcement instrument may be in noncompliance but
they threaten the use of the SNC designation to regain compliance by the PRP. Staff
3 OSRE provided the OIG SNC tracking reports at the beginning of the audit in May 2018.
20-P-0011
6
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in the same region explained that if an enforcement instrument had a cleanup that
the EPA took over and funded, the region did not designate the enforcement
instrument as "In SNC" while other regions with similar situations did designate
them as "In SNC" because the party was not complying with the original
enforcement instrument. As a result, OECA was unable to monitor compliance or
accurately assess the region's overall performance.
Regions reviewed provided a net underreporting of SNCs due to incorrect SNC
designations. For example, in our sample of six sites, we found that:
Three instruments were removed from the SNC tracking system and
subsequently re-listed as SNCs when we notified the region that they were
not listed as "In SNC."
One instrument was not listed as "In SNC" but regional staff stated that it
could have been.
One instrument was improperly listed as "In SNC" when it actually had
been "Not in SNC" for 6 years.
Therefore, regions did not properly designate SNC status for five of the six
instruments. As a result, the overall compliance reported from headquarters was
overstated.
As of May 2018, there were 1,625 active Superfund enforcement instruments
nationwide. At that same time, OECA was aware of 50 enforcement instruments that
were "In SNC," which represented 3 percent of the active instruments.
Consequently, the EPA estimated the compliance rate with Superfund enforcement
instruments as 97 percent. However, based on our limited sample of these
enforcement instruments, the compliance was overstated, as four of the six
enforcement instruments we reviewed were erroneously coded as "Not in SNC"
when they should have been coded as "In SNC." OECA's regional liaisons and
analysts did not closely monitor the tracking reports for accuracy; had they done so,
they would have identified the instruments that should have been coded as "In SNC."
Guidance for Identifying and Reporting SNCs Allows for Overly
Subjective Determinations
Regional inconsistency in SNC designations occurred, at least in part, because the
EPA's guidance4 allows regional staff a high degree of flexibility in determining
the significance of the noncompliance that is reported. The guidance provides
examples of SNC, including significant deviation from the enforcement
instrument, chronic violation and other cases the region deems substantial.
However, the guidance does not provide examples of sites that are "Not in SNC"
or sites with enforcement instruments that have only less significant violations
4 The August 2009 Guidance on Determining and Tracking Substantial Noncompliance with CERCLA Enforcement
Instruments in CERCLIS.
20-P-0011
7
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that do not rise to the level of "substantial." As a result, the guidance allows for
overly subjective determinations.
Although we agree that there can be a level of subjectivity, the guidance should
be more descriptive in defining instances and examples of when an instrument
should be considered "In SNC." For example, in one region, the EPA was dealing
with a PRP that claimed it did not have the ability to pay. When we questioned
whether the instrument should be designated "In SNC," the region agreed it could
be but, using its discretion, had not done so. Another region sampled has never
designated an instrument "In SNC" but other regions had designated similar
instruments as "In SNC." In none of these examples did headquarters verify
whether the SNC designations were revised in SEMS. When regions consult
headquarters on an issue that meets the SNC definition, headquarters should also
alert regions to update the SNC status in the system.
Enforcement Roles for Regions and Headquarters Need to Be More
Clearly Defined
In addition to the ineffective reporting of SNC, headquarters oversight was
inhibited by unclear roles regarding oversight of enforcement instruments with
SNC and compliance designations. The 2011 guidance identifies data that is
included in SNC tracking and in the Superfund compliance monitoring report.
However, that guidance as well as the 2009 guidance do not define roles for when
headquarters oversight should occur with regions for sites that are "In SNC" with
their enforcement instrument. Without sites appearing as SNCs, OECA has no
way of efficiently tracking PRP noncompliance. Likewise, OECA is unable to
accurately assess regional performance with noncompliant PRPs and cannot
confirm consistent enforcement nationwide.
Headquarters Oversight Critical for Consistent Tracking of
National Enforcement
Headquarters oversight is critical to the success of the EPA's ability to assess
regional enforcement against noncompliant PRPs and confirm consistent
enforcement nationwide (a level playing field for regulated parties), and to
determine accurate compliance rates. The EPA uses a compliance tracking
process to:
Prioritize violations.
Have a viable management tool.
Understand how frequently SNC occurs.
Understand how SNCs are addressed.
These activities have been compromised due in part to unclear guidance,
ineffective reporting and the lack of defined roles for consistently designating
SNCs.
20-P-0011
8
-------
Headquarters oversight also is critical in cases where PRPs have liabilities in
more than one region. For example, two sites reviewed had ongoing enforcement
negotiations with PRPs that had liabilities across multiple regions and
noncompliance was common across the sites. Having central oversight of sites
with these complexities could improve the rate at which the cleanup process can
progress and create a level playing field for the regulated community. Without
appropriate oversight of PRPs with sites in multiple regions, EPA awareness of all
PRP liabilities and possible inability to pay for cleanup is hindered. This situation
could lead to increased expenditures from the Superfund trust fund to pay for
cleanups, resulting in less Superfund money being available for other sites.
Moreover, when additional negotiations are required due to noncompliance,
delayed cleanups can result, thereby extending human health exposures.
Conclusions
The EPA was enforcing the EPA Superfund CERCLA enforcement instruments
for the six enforcement cases across the four regions we reviewed. However,
headquarters was not aware of site-specific enforcement due to ineffective
reporting by the regions, and did not use the SNC monitoring reports to verify
consistent enforcement nationally. Compliance was overstated by the agency for
our limited sample. EPA regions underreported the number of SNCs because
OECA issued unclear guidance, provided a limited review of SNC status, and did
not have the controls in place to monitor all SNCs that existed at the time. The
effectiveness of OECA's oversight was limited as it was not aware of all SNCs
and therefore could not assess the adequacy of regional actions against
noncompliant PRPs and assist when appropriate. Further, the EPA was limited in
its ability to track enforcement compliance consistently across the nation and
create a level playing field for the regulated community.
Recommendations
We recommend that the Assistant Administrator for Enforcement and
Compliance Assurance:
1. Revise the August 2009 Guidance on Determining and Tracking
Substantial Noncompliance with CERCLA Enforcement Instruments in
CERCLIS to (a) better define "In Substantial Noncompliance" and "Not in
Substantial Noncompliance" and (b) require correction of the Substantial
Noncompliance status when headquarters is consulted by the regions for
an issue that meets the Substantial Noncompliance definition.
2. Communicate to EPA regions clarified guidance on proper designations of
Substantial Noncompliance and how to report them in the Superfund
Enterprise Management System so that all regions consistently identify
instances of Substantial Noncompliance.
20-P-0011
9
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3. Remind regions to correct and update the Superfund Enterprise
Management System compliance data as appropriate for all active
enforcement instruments.
4. Develop, document and assign the roles and responsibilities of
headquarters staff for oversight of monitoring noncompliance with
Superfund enforcement instruments.
Agency Response and OIG Evaluation
OECA agreed with the substance of the report's recommendations and offered
technical comments. We revised the report as appropriate based on those
comments. These recommendations are resolved with corrective actions pending.
Appendix A contains the agency's response to the draft report as well as our
comments on those responses.
20-P-0011
10
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Status of Recommendations and
Potential Monetary Benefits
RECOMMENDATIONS
Potential
Planned
Monetary
Rec.
Page
Completion
Benefits
No.
No.
Subject
Status1
Action Official
Date
(in $000s)
10
10
Revise the August 2009 Guidance on Determining and Tracking
Substantial Noncompliance with CERCLA Enforcement
Instruments in CERCLIS to (a) better define "In Substantial
Noncompliance" and "Not in Substantial Noncompliance" and
(b) require correction of the Substantial Noncompliance status
when headquarters is consulted by the regions for an issue that
meets the Substantial Noncompliance definition.
Communicate to EPA regions clarified guidance on proper
designations of Substantial Noncompliance and how to report
them in the Superfund Enterprise Management System so that
all regions consistently identify instances of Substantial
Noncompliance.
Remind regions to correct and update the Superfund Enterprise
Management System compliance data as appropriate for all
active enforcement instruments.
Develop, document and assign the roles and responsibilities of
headquarters staff for oversight of monitoring noncompliance
with Superfund enforcement instruments.
Assistant Administrator for 6/3020
Enforcement and
Compliance Assurance
Assistant Administrator for 8/31120
Enforcement and
Compliance Assurance
Assistant Administrator for 8/31 /20
Enforcement and
Compliance Assurance
Assistant Administrator for 11 /30/20
Enforcement and
Compliance Assurance
1 C = Corrective action completed.
R = Recommendation resolved with corrective action pending.
U = Recommendation unresolved with resolution efforts in progress.
20-P-0011
11
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Appendix A
Agency Response to Draft Report and OIG Comment
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
-------
Assurance (OECA) believes that OIG's report has highlighted the need to ensure the quality of
data in the Superfund Enterprise Management System (SEMS) that is used to track compliance
with CERCLA enforcement instruments. Our office agrees that, in line with several of OIG's
recommendations, we can refine existing guidance and better document standard operating
procedures for the CERCLA compliance monitoring program. To this end, OECA accepts OIG's
recommendations in the draft report with one suggested revision to Recommendation 4
(described below) and agrees that actions undertaken in response to these recommendations will
support improvement of the Superfund compliance monitoring system.
However, we continue to disagree with OIG's characterization of the draft report's findings on
the following topics: (1) the assertion that "the compliance rate was overstated;" (2) the
inadequate description and acknowledgement of ongoing substantial noncompliance (SNC)
enforcement oversight and OECA's 2011 compliance monitoring measure; and (3) the weight
given to the compliance rate statistic in assessing compliance monitoring effectiveness.
(1) OIG's Findings Do Not Establish That the Compliance Rate Was Overstated
We would like your office to reconsider the title of this report because we do not believe it
accurately reflects the report's findings. The report's title and its text repeatedly state that "the
compliance rate was overstated." However, the report's findings are not sufficient to support that
conclusion. OIG reviewed a "judgmentally selected sample" of six enforcement instruments,
which represent less than 1% of the 1,625 enforcement instruments active at that time. The report
does not address the SNC status of the remaining 1,619 enforcement instruments. The finding
that five out of 1,625 enforcement instruments had incorrect SNC status codes in SEMS does not
support the broad conclusion that "the compliance rate was overstated." The enforcement
instruments reviewed were not randomly selected and the sample size was much too small to
project findings as to six enforcement instruments onto the larger universe of enforcement
instruments. We suggest that the report's title be changed to "EPA Was Enforcing Compliance
with Superfund Enforcement Instruments at Sites Reviewed but Compliance Tracking Can Be
Improved." We also request that other references in the report to the "overstated" compliance
rate be similarly modified to be consistent with the report's findings.
OIG Response 1: We did not project in this report. We found that there were four more
instruments that were "In SNC" than were identified. We have revised the report language
to state that the compliance for our sample was overstated as the designations were
incorrect and four instruments should have been "In SNC". We also revised the report title.
(2) The Draft Report Does Not Adequately Describe OECA's 2011 Compliance Monitoring
Measure and the Current Process for Headquarters Oversight of SNC Enforcement
The draft report's Recommendation 4 suggests that OECA "[djevelop, document and assign the
roles and responsibilities of headquarters staff for oversight of monitoring noncompliance with
Superfund enforcement instruments." Headquarters roles and responsibilities for oversight of
monitoring noncompliance with Superfund enforcement instruments already exist, a fact that the
draft report does not adequately describe or acknowledge. In particular, the draft report fails to
mention the 2011 Superfund compliance monitoring measure, which is the cornerstone of
OECA's compliance monitoring oversight process. Once data became available after the 2009
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Guidance on Determining and Tracking Substantial Noncompliance with CERCLA Enforcement
Instruments in CERCLIS was implemented, OEC A reconvened the national workgroup that had
written the guidance to design a compliance monitoring measure based on the data. The outcome
of those discussions was the 2011 compliance monitoring measure, which focuses on whether
the EPA has timely and appropriately addressed instances of SNC. The measure, which was
incorporated into the 2012 Superfund Program Implementation Manual, identifies enforcement
instruments that have been in SNC status "for two or more consecutive quarters and not
addressed through formal enforcement." The measure allows OECA to focus on the small subset
of enforcement instruments that still require a formal enforcement response. Most instruments in
SNC status have already been addressed by formal action, e.g., an EPA fund takeover of the
work or enforcement referral to the Department of Justice (DOJ). The SNC status remains until
all enforcement actions to resolve the noncompliance are complete. For example, as of May
2019, seven of the fifty-one SNC enforcement instruments had been in SNC for two or more
quarters without formal enforcement action. OECA circulates Superfund compliance monitoring
reports quarterly to both regional and headquarters Superfund personnel. The purpose of the
2011 measure is to "flag" the SNC and to focus attention, both in the regions and at
headquarters, on timely addressing noncompliance with enforcement instruments.
OIG Response 2: We reviewed the 2011 measure during our audit and have added mention of
it in Chapter 1. We have added reference to the guidance. However, the 2011 measure does
not define roles for when headquarters oversight should occur with regions for sites that are
"In SNC." As a result, further description of the measure is not necessary.
OECA's Office of Site Remediation Enforcement (OSRE) assigns personnel to monitor and
coordinate enforcement issues with each region. These headquarters staffers are asked, among
other things, to work with their regional counterparts to update the status of enforcement
instruments that are flagged by the measure. Staffers are also asked to work with regional staff to
determine if other instruments with potential violations should be listed in SNC. OIG's draft
report mentions this process (at p.3) and indirectly quotes the 2011 measure language in
describing information headquarters personnel are asked to track but does not directly
acknowledge the existence of the 2011 measure or its ongoing use to ensure appropriate EPA
responses to noncompliance. (OIG's March 2019 discussion document listed the 2011 measure
as among the documents reviewed by OIG but did not further discuss it; even that reference has
been deleted from the draft report.) We suggest that Recommendation 4 be modified to suggest
that OECA "expand and document the existing roles and responsibilities of headquarters staff for
oversight of monitoring noncompliance with Superfund enforcement instruments." We also
request that the report more fully describe and acknowledge current SNC oversight processes,
specifically including the 2011 compliance monitoring measure.
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OIG Response 3: In response to OECA's comments to the OIG's March 2019 Discussion
Document, we added to the report information on the function of OECA's regional analysts
and regional liaisons. However, we did not see evidence of compliance oversight during our
regional interviews or that the regional analysts questioned SNC designations. In addition, we
did not see evidence that the monitoring measure was used to ensure appropriate EPA
responses to noncompliance as OECA states. Even though monitoring requirements are
included in the 2011 guidance we continue to recommend that OECA needs to more fully
develop, document and assign the roles and responsibilities of headquarters staff for oversight
of monitoring noncompliance with Superfund enforcement instruments. We believe that the
EPA's proposed corrective action for Recommendation 4 meets the intent of the
recommendation.
(3) The Draft Report Places Too Much Weight on the Flawed Compliance Rate Statistic
We believe the draft report places too much weight on the compliance rate (e.g., 97% Not in SNC
and 3% In SNC) in assessing the effectiveness of OECA's compliance monitoring. Although the
compliance rate statistic does have some limited value because it shows that PRPs generally
comply with the obligations in Superfund enforcement instruments, OECA specifically chose not
to adopt this statistic as a measure. The national workgroup created the 2011 compliance
monitoring measure because they concluded that the compliance rate statistic was not an
appropriate compliance monitoring measure, as it did not measure the EPA's progress in
responding to specific instances of SNC. In fact, two of the most common EPA responses to
SNC, fund takeovers of work and enforcement referrals to DOJ, typically have the effect of
locking instruments into SNC status for multiple quarters rather than returning them to Not in
SNC status. Consequently, these two EPA responses to SNC actually increase the SNC rate
statistic. For example, when the EPA takes over response work due to a PRP's failure to
perform, the EPA ensures timely completion of a cleanup and at the same time typically causes
the relevant enforcement instrument to remain in SNC status until after the EPA completes the
response work and pursues its costs and/or penalties. Similarly, referrals to DOJ often leave
instruments in SNC status for multiple quarters while DOJ takes legal action. By contrast, other
effective enforcement responses decrease the SNC rate statistic by causing the PRP to bring the
relevant instrument back into compliance. Because effective enforcement responses to SNC can
either increase or decrease the compliance rate statistic, that statistic cannot serve as an effective
measure of OECA's oversight of SNC.
OIG Response 4: The OIG has not stated or implied that the compliance rate is a measure of
OECA's oversight of SNC. See OIG Response 1.
Thank you again
RESPONSE TO REPORT RECOMMENDATIONS
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Agreements
No.
Recommendation
Qualifications/
Comments
High-Level Intended
Corrective Action(s)
Estimated
Completion Date
1
Revise the August 2009
Guidance on Determining
and Tracking Substantial
Noncompliance with
CERCLA Enforcement
Instruments in CERCLIS to
(a) better define "In
Substantial Noncompliance"
and "Not in Substantial
Noncompliance: and (b)
require correction of the
Substantial Noncompliance
status when headquarters is
consulted by the regions for
an issue that meets the
Substantial Noncompliance
definition.
EPA will revise the
August 2009 Guidance
on Determining and
Tracking Substantial
Noncompliance with
CERCLA Enforcement
Instruments in CERCLIS
to (a) better define "In
SNC" and "Not in SNC":
and (b) require correction
of the SNC status when
headquarters is consulted
by the regions about an
issue that meets the SNC
definition.
June 30, 2020
2
Communicate to EPA
regions the clarified
guidance on the proper
designations of Substantial
Noncompliance and how to
track them in the Superfund
Enterprise Management
System so that all regions
consistently identify
instances of Substantial
Noncompliance.
EPA headquarters will
communicate to EPA
regions the clarified
guidance on the proper
designations of SNC and
how to track them in the
SEMS so that all regions
consistently identify
instances of SNC.
August 31, 2020
3
Remind regions to correct
and update the Superfund
Enterprise Management
System compliance data as
appropriate for all active
enforcement instruments.
EPA headquarters will
remind the regions to
correct and update the
SEMS compliance data as
appropriate for all active
enforcement instruments.
August 31, 2020
4
Develop, document and
assign the roles and
responsibilities of
headquarters staff for
oversight of monitoring
noncompliance with
Superfund enforcement
instruments.
OECA developed and
implemented roles
and responsibilities
for monitoring
compliance with
Superfund
enforcement
instruments after
adopting the 2009
guidance and 2011
measure.
EPA will expand and
document the existing
roles and responsibilities
of headquarters staff for
oversight of monitoring
noncompliance with
Superfund enforcement
instruments.
November 30, 2020
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CONTACT INFORMATION
If you have any questions regarding this response, please contact Gwendolyn Spriggs (OECA) at
202-564-2439.
Attachment:
Technical Comments
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Appendix B
Distribution
The Administrator
Assistant Deputy Administrator
Associate Deputy Administrator
Chief of Staff
Deputy Chief of Staff
Assistant Administrator for Enforcement and Compliance Assurance
Assistant Administrator for Land and Emergency Management
Agency Follow-Up Official (the CFO)
Agency Follow-Up Coordinator
General Counsel
Associate Administrator for Congressional and Intergovernmental Relations
Associate Administrator for Public Affairs
Regional Administrator, Region 2
Regional Administrator, Region 4
Regional Administrator, Region 6
Regional Administrator, Region 7
Principal Deputy Assistant Administrator for Enforcement and Compliance Assurance
Deputy Assistant Administrator for Enforcement and Compliance Assurance
Director, Office of Continuous Improvement, Office of the Administrator
Audit Follow-Up Coordinator, Office of the Administrator
Audit Follow-Up Coordinator, Office of Enforcement and Compliance Assurance
Audit Follow-Up Coordinator, Regions 2
Audit Follow-Up Coordinator, Regions 4
Audit Follow-Up Coordinator, Regions 6
Audit Follow-Up Coordinator, Regions 7
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