^tosrx
* g% *
i®o!
V PRO^&
-------
Report Contributors: Jeffrey Harris
Jee Kim
Ryan Maxwell
Thane Thompson
Michael Wilson
Abbreviations
EPA U.S. Environmental Protection Agency
FY Fiscal Year
HCOP Human Capital Operating Plan
OIG Office of Inspector General
OPM U.S. Office of Personnel Management
OPPT Office of Pollution Prevention and Toxics
TSCA Toxic Substances Control Act
Cover Photo: Illustration depicting lack of planning for staff and resources. (OIG image)
Are you aware of fraud, waste, or abuse in an
EPA program?
EPA Inspector General Hotline
1200 Pennsylvania Avenue, NW(2431T)
Washington, D.C. 20460
(888) 546-8740
(202) 566-2599 (fax)
OIG Hotline@epa.gov
Learn more about our OIG Hotline.
EPA Office of Inspector General
1200 Pennsylvania Avenue, NW (2410T)
Washington, D.C. 20460
(202) 566-2391
www.epa.gov/oiq
Subscribe to our Email Updates
Follow us on Twitter @EPAoig
Send us your Project Suggestions
-------
U.S. Environmental Protection Agency 20-P-0247
£ ro Office of Inspector General August 17,2020
\mj
At a Glance
Why We Did This Project
The U.S. Environmental
Protection Agency's Office of
Inspector General conducted
this audit to determine whether
the EPA met the deadlines
already imposed by the Frank
R. Lautenberg Chemical Safety
for the 21 st Century Act in
2016, which amended the
Toxic Substances Control Act
of 1976, and has the staff,
resources, and management
controls in place to meet future
statutory deadlines.
The TSCA provided the EPA
with the authority to assess the
safety of commercial chemicals
and to regulate those
chemicals that posed an
"unreasonable risk" to human
health or the environment. Prior
to the 2016 amendments, the
EPA only used its authority
under the TSCA to limit or ban
the use of five existing
chemicals in 40 years. The
amendments strengthened the
EPA's authorities to evaluate
and regulate both existing and
new chemicals.
This report addresses the
following:
• Ensuring the safety of
chemicals.
This project addresses a top
EPA management challenge:
• Improving workforce/workload
analyses.
Address inquiries to our public
affairs office at (202) 566-2391 or
OIG WEBCOMMENTS@epa.gov.
Lack of Planning Risks EPA's Abiiity to Meet
Toxic Substances Control Act Deadlines
The EPA did not complete a
significant TSCA deadline on
June 19, 2020, and the Agency
is at risk of missing future
deadlines due to a lack of staff
and resource planning.
What We Found
The 2016 TSCA amendments required the
EPA to develop new rules for chemical
prioritization for risk evaluation and risk
evaluation for existing chemicals.
Additionally, the amended law requires the
EPA to review all new chemical submissions
and make a regulatory determination. The
EPA met several of its TSCA deadlines but did not complete all ten required
existing chemical risk evaluations by the June 19, 2020 deadline. Because of
statutory requirements, the number of required existing chemical risk evaluations
doubled at the end of 2019, risking the EPA's ability to meet TSCA deadlines.
The EPA's ability to assess its TSCA workload—and subsequently estimate the
workforce levels necessary to achieve that workload—is critically important. The
Office of Pollution Prevention and Toxics has not publicly identified the additional
staff and resources it needs to accomplish all mandated TSCA requirements. The
OPPT's resource planning is hindered by not complying with the U.S. Office of
Personnel Management regulations, which requires developing a workforce plan
to manage current and future workforce needs.
The EPA's program offices have not conducted a systematic workload analysis
or identified workforce needs for budget justification purposes since 1987. We
found this to be true for the OPPT, which is responsible for implementing the
TSCA amendments. Though the OPPT expects to hire more staff members to
implement the TSCA amendments in fiscal year 2020, the Office lacks a
workforce-and-workload analysis to successfully implement and meet the 2016
TSCA deadlines. Additionally, the EPA's annual plans for risk evaluations were
neither done in a timely manner nor met the statutory requirements to identify the
resources needed to initiate or complete the risk evaluations for the year.
Recommendations and Planned Agency Corrective Actions
We recommend that the assistant administrator for Chemical Safety and Pollution
Prevention (1) publish the annual existing chemical plan including the anticipated
implementation efforts and required resources, (2) conduct a workforce analysis
to assess the OPPT's capability to implement the TSCA, and (3) specify what
skill gaps must be filled in fiscal year 2021 to meet the TSCA requirements.
The Agency provided acceptable corrective actions and estimated milestone
dates for all recommendations. We consider these recommendations resolved
with corrective actions pending.
List of OIG reports.
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
THE INSPECTOR GENERAL
August 17, 2020
MEMORANDUM
SUBJECT: Lack of Planning Risks EPA's Ability to Meet Toxic Substances Control Act Deadlines
Report No. 20-P-0247
This is our report on the subject audit conducted by the Office of Inspector General of the
U.S. Environmental Protection Agency. The project number for this audit is OA&E-FY 19-0127. This
report contains findings that describe the problems the OIG has identified and corrective actions that the
OIG recommends. Final determinations on matters in this report will be made by EPA managers in
accordance with established audit resolution procedures.
The Office of Chemical Safety and Pollution Prevention 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.
FROM:
Sean W. O'Donnell
TO:
Alexandra Dapolito Dunn, Assistant Administrator
Office of Chemical Safety and Pollution Prevention
We will post this report to our website at www.epa.gov/oig.
-------
Lack of Planning Risks EPA's 20-P-0247
Ability to Meet Toxic Substances
Control Act Deadlines
Table of C
Purpose 1
Background 1
Responsible Office 4
Scope and Methodology 4
Results 4
EPA Missed the Deadline for the Initial Ten Existing Chemical
Risk Evaluations 5
Chemical Risk Evaluation Requirements Doubled at the End of 2019 7
EPA Has Not Demonstrated Capacity To Meet Future Deadlines 7
Criteria for Meeting Future Deadlines Will Become More Rigorous 8
EPA's Resource Planning Process Does Not Meet OPM Requirements 9
EPA's Initial TSCA Capacity Report and Annual TSCA Amendments
Implementation Plans Lack Information on Staffing Needs 11
Conclusions 12
Recommendations 12
Agency Response and OIG Assessment 13
Status of Recommendations and Potential Monetary Benefits 14
Appendices
A Agency's Response to Draft Report 15
B Supplemental Comments on Draft Report 20
C Distribution 22
-------
Purpose
The U.S. Environmental Protection
Agency's Office of Inspector General
conducted this audit to determine whether
the EPA has met the already applicable
deadlines imposed under the Frank R.
Lautenberg Chemical Safety for the 21st
Century Act, and has the staff, resources,
and management controls in place to meet
future statutory deadlines.
Background
The Toxic Substances Control Act of 1976 provided the EPA with the authority to
assess the safety of commercial chemical substances and mixtures, and to regulate
those that posed "unreasonable risk of injury" to human health or the
environment.1 The law did not mandate or provide a timetable by which the EPA
had to review the estimated 62,000 existing chemical substances that were already
in use in commerce at the time. The 1976 Act required the EPA to identify the
"least burdensome" method for reducing risk. This put the burden of proof on the
EPA to demonstrate whether actions taken under the Act were of sufficient
benefit to the public interest compared to the costs to the economy of banning or
restricting the product. Even when the EPA had sufficient information to
determine that a chemical posed an unreasonable risk, the Agency had difficulty
banning or placing limits on the production or use of that chemical.2 As a result,
the EPA limited or banned the use of only five existing chemicals in 40 years.
New EPA Authorities and Responsibilities
Enacted in 2016, the Frank R. Lautenberg Chemical Safety for the 21st Century
Act, or "TSCA amendments," strengthened the EPA's authority to evaluate and
regulate, where necessary, both existing and new chemicals. As codified in
15 U.S.C. § 2605, the TSCA amendments require the EPA to conduct a
prioritization process to determine if chemical substances are a high- or low-
priority for risk evaluation and determine whether that substance presents an
unreasonable risk of injury to human health or the environment. The risk
evaluations are to be done "without consideration of costs or other nonrisk
factors." These evaluations must include information that is relevant to specific
risks of injury to health or the environment and information on potentially
exposed or susceptible subpopulations.
Top Management Challenge
This audit addresses the following top
management challenge for the Agency, as
identified in OIG Report No. 20-N-0231,
EPA's FYs 2020-2021 Top Management
Challenges, issued July 21, 2020:
• Improving workforce/workload
analyses.
1 Pub. L. 94-469, § 2(b).
2 Pub. L. 94-469, § 6(c).
1
20-P-0247
-------
The majority of the new TSCA requirements focus on developing and
implementing new processes for conducting risk evaluations on existing
chemicals. By June 22, 2017, within the first year the amendments were enacted,
the EPA was required to develop a framework for prioritizing and assessing
existing chemicals and then use that policy framework, including the "Risk
Evaluation Rule,"3 to complete its initial ten existing chemical risk evaluations by
December 19, 2019. Because of the requirements in the TSCA amendments, the
EPA's existing chemical workload doubled on December 22, 2019, requiring the
Agency to start risk evaluations for 20 additional high-priority substances and to
designate another 20 substances as low priority. Further, the TSCA requires that
for each risk evaluation completed on a high-priority substance, the EPA must
begin a new high-priority risk evaluation. Once the EPA initiates a risk
evaluation, it must complete it within three years. The administrator may extend
this deadline by no more than six months, which was done for the initial ten
existing chemical risk evaluations.
TSCA Amendments Capacity Assessment and Annual Planning
The TSCA amendments require the EPA to assess its resource and staffing
capacity to accomplish several of the statute's mandates. The amendments also
required the administrator to provide Congress with an initial capacity estimate by
December 22, 2016. The administrator has to update this assessment at least once
every five years and include estimates regarding:
• The Agency's capacity to conduct and publish required existing chemical
risk evaluations and the resources necessary to conduct the minimum
number of existing chemical risk evaluations.
• The Agency's capacity to conduct and publish risk evaluations requested
by the chemical manufacturers, including the likely demand for such risk
evaluations and the schedule for accommodating that demand.
• The Agency's capacity to disseminate rules to address unreasonable risks
of injury to health or the environment identified for existing chemicals "so
that the chemical substance or mixture no longer presents such risk."
• The actual and anticipated efforts of the EPA to increase the Agency's
capacity to conduct and publish existing chemical risk evaluations.4
One of the amendments required the EPA to develop an annual plan for
implementing the new requirements of conducting existing chemical risk
evaluations. Specifically, it states that:
3 As required by 15 U.S.C. § 2605 (b)(4)(B).
415 U.S.C. § 2625(m)(l)(A-D).
20-P-0247
-------
The Administrator shall inform the public regarding the schedule
and the resources necessary for the completion of each risk
evaluation as soon as practicable after initiating the risk evaluation.
The amendment also states the requirements of the plan:
Publication of plan - At the beginning of each calendar year, the
Administrator shall publish an annual plan that—
(A)identifies the chemical substances for which risk
evaluations are expected to be initiated or completed that
year and the resources necessary for their completion;
(B) describes the status of each risk evaluation that has been
initiated but not yet completed; and
(C) if the schedule for completion of a risk evaluation has
changed, includes an updated schedule for that risk
evaluation.
Federal Requirements for Workforce Planning
The Chief Human Capital Officers Act of 2002 tasked the U.S. Office of
Personnel Management with designing a set of systems to assess the management
of human capital by federal agencies, including setting standards for aligning
human capital strategies with agencies' missions, goals, and organizational
objectives.5
As a result, the OPM established the Human Capital Framework, a compilation of
four strategic human capital management systems, standards, and focus areas.
This framework provides federal agencies definitions and standards for human
capital planning, implementation, and evaluation. Specifically, the Human Capital
Framework standards require an agency to "plan for and manage current and
future workforce needs; design, develop, and implement proven strategies and
techniques and practices to attract, hire, develop, and retain talent; and make
progress toward closing any knowledge, skill, and competency gaps throughout
the agency."6 Further, each agency is required to plan and implement its human
capital policies and programs "based on comprehensive workforce planning and
analysis" and is required to manage skill gaps in mission-critical occupations by
using "comprehensive data analytic methods and gap closure strategies."7
The OPM regulations also require agencies to develop a Human Capital
Operating Plan to demonstrate how their human capital strategies adhere to the
principles and standards of the Human Capital Framework. Agencies must use
their HCOP to support their strategic plans because human capital can impact
5 Codified at 5 U.S.C. § 1103(c).
6 5 CFR § 250.203(b).
7 5 CFR § 250.204(a)(2)-(3).
3
20-P-0247
-------
whether a strategy or strategic goal is achieved. The regulations require that
agencies review their HCOP annually and approve or update the plan as needed.
Responsible Office
The Office of Pollution Prevention and Toxics, within the Office of Chemical
Safety and Pollution Prevention, manages the TSCA programs.
Scope and Methodology
We conducted our work from May 2019 to June 2020. We conducted this
performance audit 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 objectives. We believe that the evidence obtained
provides a reasonable basis for our findings and conclusions based on our audit
objectives.
Our scope included evaluating the EPA's staffing, resources, and management
control plans for the new and existing chemical requirements enacted by the
TSCA amendments. The OIG reviewed information regarding staffing and
reorganization plans; management analyses of TSCA requirements; and internal
guidance, management control, and process documents regarding the new or
expanded processes. We also reviewed annual plans and staffing numbers in the
OPPT divisions that are responsible for implementing the TSCA requirements and
conducted follow-up meetings to discuss the documents.
Results
As of June 2020, the EPA met several of its TSCA deadlines, including the initial
requirements to develop new rules for risk prioritization and existing chemical
risk assessment, publication of scopes for the first ten chemical risk evaluations,
and publication of several guidance materials. However, the EPA did not
complete all ten required existing chemical risk evaluations by the June 19, 2020
deadline.
The EPA's ability to meet future TSCA deadlines are at risk. On December 22,
2019, the number of required existing chemical risk evaluations doubled. The
OPPT has not publicly identified the additional staff and resources it needs to
accomplish all mandated TSCA requirements. The EPA's resource planning is
hindered by not complying with OPM regulations. The OPM requires the EPA to
develop human capital policies and programs based on a comprehensive
workforce planning analysis. It also requires the EPA to address skill gaps for
mission critical positions using data analytics and gap closure strategies. The
EPA's program offices have not conducted a systematic workload analysis or
identified workforce needs for budget justification purposes since 1987. We found
20-P-0247
-------
this to be true for the OPPT, which is responsible for implementing the TSCA
amendments.
Though the OPPT expects to hire more than 50 staff members to implement the
TSCA amendments in fiscal year 2020, the Office lacks a workforce-and-
workload analysis to demonstrate that, even with 50 additional staff, it has the
capacity to successfully implement the TSCA amendments within the required
time frames. Additionally, a mandated TSCA capacity report assessing the
Agency's capacity and resources needed to conduct and publish risk evaluations
met minimum requirements but lacked the detail necessary to identify key staffing
needs.
EPA Missed the Deadline for the Initial Ten Existing Chemical Risk
Evaluations
As of June 2020, the EPA has completed several of the TSCA amendments on
time. Some, while completed, were not finished within the statutory deadline for
that requirement. (Table 1). The OPPT was required to complete the first ten
existing chemical risk evaluations by December 19, 2019. The TSCA
amendments allowed the administrator to grant an extension of no more than six
months to the three-year statutory deadline for completing individual risk
evaluations. However, the extension was applied for all of the first ten chemical
evaluations. The EPA did miss the final statutory deadline because nine out of ten
risk evaluations were not completed by the June 19, 2020 extension.
Table 1: Deadlines and requirements for TSCA amendments
Deadline
Status
Publish in the Federal Register a list of mercury
compounds that are prohibited from export.
9/20/16
8/12/16
V
Report to Congress on the EPA's capacity to
conduct and publish risk evaluations and the
resources necessary to conduct the minimum
number of risk evaluations.
12/22/16
1/17/17
A
Identify and initiate the first ten chemical risk
evaluations.
12/19/16
12/13/16
Develop and implement a rule for updating the
TSCA existing chemical inventory.
6/22/17
6/22/17
Develop and finalize Risk Prioritization Rule.
6/22/17
6/22/17
Develop and finalize Risk Evaluation Rule.
6/22/17
6/22/17
Publish scope documents for first ten chemical
risk evaluations.
6/22/17
6/22/17
Develop guidance for external party risk
evaluation development and submission.
6/22/17
6/22/17
Develop rule on information requirements for
manufacturers of mercury, mercury-added
6/22/18
6/21/18
20-P-0247
5
-------
products, and other mercury processes identified
by the Agency.
Develop and publish a strategic plan to promote
the development and implementation of
nonanimal alternative test methods.
6/22/18
6/21/18
Develop and finalize a User Fee Rule.
N/A
9/27/18
V
Publish Proposed Rule for Certain Confidential
Business Information under the TSCA.
2/19/20
4/10/19
V
Publish Proposed Rule for the Regulation of
Persistent, Bioaccumulative, and Toxic
Chemicals.
6/22/19
6/21/19
V
Propose low-priority designation for 20
chemicals.
8/13/19
8/13/19
V
January 2017
2/9/17
A
Publish an Annual Existing Chemical Risk
January 2018
1/31/18
Evaluation Plan.*
January 2019
5/14/19
A
January 2020
5/13/20
A
Identify 20 high-priority existing chemicals.
12/22/19
12/20/19
V
Finalize 20 low-priority chemical designations.
12/22/19
2/19/20
A
Publish Final Rule for Certain Confidential
Business Information under the TSCA.
2/19/20
2/19/20
Complete first ten existing chemical risk
evaluations.**
12/22/19-6/19/20
Incomplete
A
Publish scoping documents for designated 20
high-priority chemicals.
6/30/20
Incomplete
A
Publish Final Rule to Address Persistent,
Bioaccumulative and Toxic Chemicals.
12/22/20
In Progress
©
Complete risk evaluations on 20 high-priority
chemicals.
12/30/22
In Progress
©
LEGEND:
Completed Completed Late
>/ A
Incomplete
A
In Progress
©
Source: The OPPT and the OIG.
* Pursuant to 15 U.S.C. § 2625(n), these plans are due at the "beginning of each calendar year."
The OIG interprets this to be no later than January 31.
**The EPA utilized an optional six-month extension authorized by 15 U.S.C. § 2605(b)(4)(G)(ii).
20-P-0247
6
-------
Chemical Risk Evaluation Requirements Doubled at the End of 2019
In addition to completing the first ten risk evaluations, the Agency was also
required to initiate the next 20 high-priority risk evaluations by December 22,
2019. The Agency was also required to designate 20 chemicals as low-priority by
December 22, 2019, but the Agency did not finalize its low-priority designations
until February 19, 2020. Given the high-priority designation date of December 20,
2019, the EPA must complete all 20 of the high-priority risk evaluations no later
than December 20, 2022.8 Successful implementation of the TSCA amendments
requires that the Agency must designate another chemical for evaluation every
time it completes a high-priority existing chemical risk evaluation. As shown in
Table 1, the EPA has missed the existing chemical risk evaluation deadline and
has been delayed in meeting several more. The EPA's and the OPPT's lack of
workforce-planning analyses to allocate sufficient staff and determine resource
capacity has directly contributed to delays in fulfilling these statutory
responsibilities.
EPA Has Not Demonstrated Capacity to Meet Future Deadlines
The U.S. Government Accountability Office also identified the OPPT's current
capacity challenges as a concern in a March 2019 TSCA status report.9 The report
reviewed the EPA's initial implementation of the Act's requirements and also
reviewed the OPPT's staffing levels. On page 33 of that report, the agency stated:
Some OPPT officials told us that they have concerns about staff
capacity within OPPT. Officials in both the Chemical Control
Division (responsible for risk management) and the Risk
Assessment Division (responsible for risk assessment) said that
they do not have sufficient resources to do their work. This
included staff from all five technical teams we interviewed in the
Risk Assessment Division.
In addition, page 34 of the report included the following information regarding
staffing and staff management:
Officials from the Chemical Control Division told us that the Risk
Assessment Division is struggling more because its work requires
more technical employees. The officials said that EPA is hiring
additional full- time equivalents, but it takes time to train new
people, and this will initially increase workload.
8 Subject to a six-month extension. 15 U.S.C. § 2605(b)(4)(G)(ii).
9 Status of EPA's Efforts to Produce Assessments and Implement the Toxic Substances Control Act, GAQ-19-270.
March 4, 2019.
7
20-P-0247
-------
On page 35, the agency wrote, "OPPT senior officials said that now that OPPT
has many new responsibilities and a heavier workload, they are taking steps to
improve capacity by implementing the reorganization and hiring new staff" The
report noted that EPA officials anticipated implementing the reorganization in
early 2019. However, the OPPT informed us during this audit that the
reorgani zation effort was currently on-hold to avoid short-term disruption of the
existing and new chemical programs.
In December 2019, the OPPT provided us with internal documentation that
outlined its hiring needs in FY 2020. These internal, unofficial documents
outlined the OPPT's need to hire additional staff members to successfully
complete its existing chemical risk evaluation work, in addition to other TSCA
implementation work. According to the FY 2020 hiring estimate, which reflects
estimates of staffing needs from
"discussions" between the OPPT
deputy division directors and division
directors to fill mission-critical
positions, the OPPT expects to hire
about 54 staff members to work on
TSCA implementation efforts. In a
follow-up discussion, the OPPT
indicated it needed to increase its
overall staffing from 306 full-time
equivalent staff in FY 2019 to 360 by
the end of FY 2020 to support the
requirements of the TSCA
amendments (Figure 1). On February
26, 2020, the OPPT informed us that
it hired 24 people since the beginning
of the fiscal year. On July 22, 2020
the OPPT stated that it is planning to
hire an additional 18 staff members for a new branch within OPPT's Risk
Assessment Division dedicated to conducting risk evaluations. Even after the
additional staff are hired, the OPPT will still have a staffing gap between its
current staff level and its projected staffing needs.
Criteria for Meeting Future Deadlines Will Become More Rigorous
In addition to the challenges of meeting existing deadlines, the EPA needs to
revise its approach to conducting its ongoing risk evaluations. On November 14,
2019, the U.S. Court of Appeals for the Ninth Circuit issued a ruling in Safer
Chemicals, Healthy Families, et at. v. U.S. EPA, which required changes to the
EPA's existing chemical Risk Evaluation Rule implemented under the TSCA
amendments.10 The ailing impacted the part of the "Framework Rule" that
addressed the scope of the EPA's existing chemical risk evaluations. When
10 943 F.3d 397 (9th Cir. 2019).
8
20-P-0247
Figure 1: Gap to reach FY 2020 staffing
goal of 360 full time equivalents
OPPT
staffing
goal gap,
54.15%
Source: The OPPT.
-------
conducting a risk evaluation, the EPA's rule did not consider what it termed
"legacy uses" of a chemical, meaning "circumstances associated with activities
that do not reflect ongoing or prospective manufacturing, processing, or
distribution."11
The Court held that the EPA's exclusion of "legacy uses" and the "associated
disposals" were contrary to the language in the TSCA amendments.12 The Court
also held that the EPA must consider these uses when evaluating the risks in
chemicals. This ruling requires the EPA to revise its risk-evaluation process to
include the legacy uses and associated disposals of the chemical substance being
evaluated. The resulting expansion of the scope of the EPA's risk-evaluation
process will require the Agency to devote more staffing and resources to existing
chemical risk evaluations. As of May 26, 2020, the EPA has not published any
official impact assessment of the legacy uses and associated disposals of the first
ten or the next 20 chemicals. Given the delays discussed above, as well as the
Ninth Circuit's ruling requiring the EPA to expand its risk-evaluation process to
include legacy uses and associated disposal, the OPPT cannot demonstrate that it
has the capacity to successfully implement the TSCA amendments within the
required time frames.
EPA's Resource Planning Process Does Not Meet OPM
Requirements
The EPA's ability to assess its workload—and subsequently estimate workforce
levels necessary to carry out that workload—is critically important to mission
accomplishment. The EPA is still not meeting the OPM's regulations pertaining
to workforce planning and analysis requirements. When we requested documents
specific to its TSCA amendments implementation efforts, the OPPT provided
numerous hiring policies and guidance, as well as documents detailing past hiring
efforts. The OPPT did not provide a comprehensive analysis showing how the
Agency's HCOP had changed to address its new TSCA statutory mandates. The
OPPT indicated that it had only developed a few straw proposals but planned to
develop its own portion of the Agency's HCOP in FY 2020.
On October 9, 2019, the OPM evaluated and provided comments on the EPA's
HCOP for FY 2019, as well as other human capital services. The OPM found
deficiencies and instructed the EPA to:
• Prepare a workforce plan which manages current and future workforce
needs, identifies competency gaps, and incorporates strategies to promote
11 Procedures for Chemical Risk Evaluation Under the Amended Toxic Substances Control Act, 82 Fed. Reg.
33,726, 33,729 (July 20, 2017).
12 The ruling in the Safer Chemicals case used the following example: "[ A |lthough asbestos is now infrequently
used in making new insulation, it remains in place in previously installed insulation. According to EPA's
interpretation, the use of asbestos in insulation is a 'legacy use' of that chemical. 'Associated disposals]' refers to
future disposals from legacy uses, such as removal of asbestos-containing insulation to a landfill during a building's
renovation."
9
20-P-0247
-------
gap closure as well as provide evidence of action planned or taken to
ensure future compliance.
• Monitor and address skill gaps within governmentwide and Agency-
specific Mission Critical Occupations by using comprehensive data
analytic methods and gap closure strategies as well as provide evidence of
action planned or taken to ensure future compliance.
In response to the OPM's findings, the EPA outlined a corrective action plan
where it agreed to finalize a workforce plan and update its HCOP by the end of
FY 2020. The EPA also agreed to identify competency gaps and closure strategies
in its workforce plan by the end of the second quarter in FY 2021.
The OIG develops and publishes a list of the EPA's key management challenges
every year. These challenges are issues identified in previous audits where the
OIG sees greater vulnerability for waste, fraud, abuse, or mismanagement, and
that could seriously affect the EPA's ability to achieve its mission or goals. Every
year since 2012, the OIG has identified workforce planning and workforce
analysis as a key management challenge. Both the OPM and the OIG have found
that the EPA has not addressed the workforce planning requirements of 5 C.F.R.
Part 250, Subpart B, Strategic Human Capital Management. The OIG and the
Government Accountability Office reported that the EPA had not incorporated
workload analysis into its resource allocations. Specifically, the EPA had not fully
implemented controls and a methodology to determine workforce levels based
upon analysis of the Agency's workload.
In response to the OIG's ongoing identification of workforce analysis as a key
management challenge, the EPA said in its FY 2018 Agency Financial Report that
it "deliberately discontinued using comprehensive workload analyses because
they require substantial work to develop, maintain, and refine." The EPA said in
that same report that it "believes there is value in using trend and macro-level
workload reviews to estimate program needs and using workload analyses of task-
driven functions."
Based on the OIG's analyses in its key management challenges reports and our
review of information provided by the OPPT, the EPA's program offices have not
conducted a systematic workload analysis or identified workforce needs for
budget justification purposes since 1987. Further, the Agency has not updated its
HCOP to include resource needs related to the TSCA amendments. As a result,
the lack of a workforce-and-workload analysis adversely impacts the ability of the
EPA's TSCA-related programs to efficiently and effectively carry out their
mission.
20-P-0247
10
-------
EPA's Initial TSCA Capacity Report and Annual TSCA Amendments
Implementation Plans Lack Information on Staffing Needs
Initial Capacity Report
The EPA issued its initial TSCA capacity report to Congress in January 2017.
The report addressed, in general terms, the EPA's capacity and resources
necessary to meet the new TSCA requirements for risk evaluations. For
example, the EPA estimated that each risk evaluation would cost
approximately $1.2 million per year to conduct, and that the total cost of
conducting 30 risk evaluations at the same time would be approximately $36
million per year. The EPA's capacity report did not, however, detail how
many existing staff had the necessary skills to conduct such work, or how
many additional staff the EPA would need to hire to complete all the required
tasks. Similarly, the initial capacity assessment did not include a workload
analysis of how the EPA would initiate the actual and anticipated efforts
necessary to increase the Agency's capacity to meet the TSCA amendments
deadlines for existing chemical-risk evaluations.
Annual Plans
The TSCA amendments also require the EPA to publish an annual plan for
existing chemical risk evaluations at the beginning of each calendar year that
identifies the risk evaluations that will be initiated or completed that year, the
resources necessary for completing the risk evaluations, and an updated
schedule for completing risk evaluations.13 These annual risk-evaluation
plans, however, are structured more as a status report than an implementation
plan that identifies a specific set of processes to reach their goals. The annual
plans for 2018, 2019, and 2020 published on the Agency website are referred
to as "reports" and focus on actions already accomplished. These annual plans
do not identify the specific amount of financial and staff resources needed to
initiate or complete the risk evaluations for the year. Though the reports
include a section titled, "Resources Necessary for Risk Evaluations," the only
resources mentioned are referrals to the fees rule published in 2018. The
documents do not list the chemicals under review or their evaluation status,
and do not mention the number of staff necessary to complete the work, the
skills or expertise required, or which branch or division will be tasked. As a
result, these annual plans do not meet the statutory requirement to identify the
resources necessary to initiate or complete the risk evaluations for the year.
The annual plans have also not been developed in a timely manner. The TSCA
amendments require that annual plans be published at the beginning of the
calendar year. For the purpose of our evaluation, we consider an annual plan
published by the end of January as timely. Further, we believe that the annual
1315 U.S.C. § 2625(n)(2).
11
20-P-0247
-------
plans should include a description of the financial and staff resources
necessary to complete each of the evaluations. The annual plans for 2019 and
2020 were not published until May 14, 2019, and May 13, 2020, respectively.
The lack of statutorily required necessary resources, late publication, and lack
of implementation details in the annual plans indicate gaps in the OPPT's
existing chemical evaluation annual planning process. These challenges, as
well as the concerns raised about workforce planning and capacity
assessments, show that the OPPT cannot demonstrate its ability to meet future
TSCA deadlines for risk evaluations.
Conclusions
The EPA did not meet its existing chemical risk evaluation deadline of June 19,
2020, and the Agency has not developed a plan demonstrating that it has the
capacity to meet future requirements. In February 2020, the Agency told us that it
hired 24 additional staff, and as of July 22, 2020, the OPPT outlined plans to hire
an additional 18 staff—this would still leave a staffing gap from its 2019 TSCA
staffing analysis. Further, that analysis was conducted prior to Ninth Circuit's
ruling in Safer Chemicals, Healthy Families, et al. v. U.S. EPA, which required
the Agency to expand its existing chemical-risk-evaluation process to include
legacy uses and associated disposals. The EPA's annual plans for risk evaluations
were neither done in a timely manner nor met the statutory requirements to
identify the resources needed to complete the risk evaluations for each year.
Lastly, the Agency has not conducted workforce analysis or resource planning
required by OPM regulations. Due to these missed deadlines and resource
planning and analysis deficiencies, the EPA risks not meeting the TSCA
deadlines.
Recommendations
We recommend that the assistant administrator for Chemical Safety and Pollution
Prevention:
1. Complete and publish the 2021 Annual Existing Chemical Risk
Evaluation Plan by the beginning of calendar year 2021 and include the
anticipated implementation efforts and financial and staff resources to
implement the actions detailed in the plan.
2. Conduct a workforce analysis that accurately assesses the capability of the
Office of Pollution Prevention and Toxics to implement the requirements
of the Toxic Substances Control Act.
3. Specify what skill gaps must be filled to achieve the Toxic Substances
Control Act implementation capacity and how and when those gaps will
be filled in the fiscal year 2021 workforce plan that the EPA agreed to
develop in its corrective action plan to the U.S. Office of Personnel
Management.
12
20-P-0247
-------
Agency Response and OIG Assessment
In the EPA's initial response, the Agency agreed in part with Recommendation 1,
agreed with Recommendations 2 and 3, and provided proposed corrective actions
and scheduled completion dates for all recommendations.
The Office of Chemical Safety and Pollution Prevention initially only agreed in
part with Recommendation 1. However, in a follow-up memorandum, which we
included in Appendix B, the Office stated that it will add additional information
from internal planning documents to the annual plans, including the status of each
risk evaluation, as well as the full-time equivalent staff and extramural resources
allotted for the given fiscal year. The Office provided the OIG with an example of
the table that will be included with the annual plans with such information. The
OIG concluded that this is an acceptable corrective action. Recommendation 1 is
resolved with corrective actions pending.
Recommendations 2 and 3 are resolved with corrective actions pending. In
responses to Recommendations 2 and 3, the Office of Chemical Safety and
Pollution Prevention agreed to conduct a workforce analysis specifically focused
on the capability of the OPPT to implement the TSCA's requirements. It also
agreed to use the workforce analysis to complete a skill gap analysis and use its
hiring plan to fill identified gaps.
The Agency provided technical comments on the draft report, which we
incorporated into our final report as appropriate. The Agency's initial response to
the draft report is in Appendix A. The Agency's supplemental comments to the
draft report are in Appendix B.
20-P-0247
13
-------
Status of Recommendations and
Potential Monetary Benefits
RECOMMENDATIONS
Rec.
No.
Page
No.
Subject
Status1
Action Official
Planned
Completion
Date
Potential
Monetary
Benefits
(in $000s)
12 Complete and publish the 2021 Annual Existing Chemical Risk
Evaluation Plan by the beginning of calendar year 2021 and
include the anticipated implementation efforts and financial and
staff resources to implement the actions detailed in the plan.
12 Conduct a workforce analysis that accurately assesses the
capability of the Office of Pollution Prevention and Toxics to
implement the requirements of the Toxic Substances Control
Act.
Y2 Specify what skill gaps must be filled to achieve the Toxic
Substances Control Act implementation capacity and how and
when those gaps will be filled in the fiscal year 2021 workforce
plan that the EPA agreed to develop in its corrective action plan
to the U.S. Office of Personnel Management.
Assistant Administrator for 1/31/21
Chemical Safety and
Pollution Prevention
Assistant Administrator for 12/31 /20
Chemical Safety and
Pollution Prevention
Assistant Administrator for 3/31/21
Chemical Safety and
Pollution Prevention
1 C = Corrective action completed.
R = Recommendation resolved with corrective action pending.
U = Recommendation unresolved with resolution efforts in progress.
14
20-P-0247
-------
Appendix A
Agency's Response to Draft Report
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF CHEMICAL SAFETY
AND POLLUTION PREVENTION
May 26. 2020
MEMORANDUM
SUBJECT: Response to Draft Report entitled "Lack of Planning for Staff and Resources Puts
EPA's Ability to Meet TSCA Deadlines at Risk," Report No. 19-P-0127
This memorandum responds to the Office of Inspector General's (OIG's) April 24, 2020 Draft
Report entitled "Lack of Planning for Staff and Resources Puts EPA's TSCA Deadlines at Risk,"
Report No. 19-P-0127 (Draft Report). The Office of Chemical Safety and Pollution Prevention
(OCSPP) appreciates the OIG's effort in evaluating whether EPA met the deadlines imposed by
the Frank R. Lautenberg Chemical Safety for the 21st Century Act, and whether OCSPP has the
staff, resources, and management controls in place to meet future statutory deadlines.
I. General Comments on the Draft Report
OCSPP has reviewed the Draft Report and has several broad areas of concern with its statements
and conclusions. In addition, our review identified a series of factual errors and significant
omissions, which we describe in a Technical Comments document transmitted with this
memorandum. A few of the factual errors and omissions are summarized below.
FROM: Alexandra Dapolito Dunn, Esq.
Assistant Administrator
ALEXANDRA
DAPOLITO DUNN
Digitally signed by
ALEXANDRA DAPOLITO DUNN
Date; 2020-05.26 1 7JOJ09
-04TW'
TO:
Sean W. O'Donnell
Inspector General
20-P-0247
15
-------
The Draft Report concludes first that "EPA missed its first significant deadline in December
2019" to complete the first 10 existing chemical risk evaluations.1 However, TSCA provides that
EPA may invoke a six-month extension beyond the December 19, 2019 deadline to June 19,
2020. No action was necessary on EPA's part to use the extension. We suggest a more accurate
statement regarding our progress on the first 10 risk evaluations in the Technical Comments.
OIG RESPONSE 1: On May 20, 2020, the administrator said that the EPA will not meet its
statutory deadline for completing final evaluations for ten chemicals by June 19, 2020, at the
U.S. Senate Committee on Environment and Public Works hearing. We have edited the report
to state that the EPA missed the June 19, 2020 deadline.
The Draft Report discusses the TSCA program's staffing needs too broadly and draws inaccurate
conclusions about the program's readiness and capacity to meet future deadlines. In the
Technical Comments, OCSPP provides updated information which should assist the OIG in
reassessing these staffing conclusions.
Similarly, the Draft Report also draws broad conclusions regarding the timeliness of TSCA
actions. If the OIG is relying on the publication date of Federal Register Notices to assess
timeliness, this is inconsistent with how EPA has historically determined dates of completion.
OCSPP follows the long-standing Agency practice that the date of signature of an action is
considered the completion of the action, even if the publication in the Federal Register is later, so
long as EPA also makes the action publicly available.
As such, on numerous occasions since the 2016 TSCA amendments, the Administrator signed
final TSCA actions on or before the statutory deadline, and EPA announced those actions via
press releases and list servs and posted them to the EPA website. Notably, the Office of General
Counsel and the Office of the Chief Financial Officer use the date of signature to evaluate
OCSPP's compliance with TSCA's deadlines. In the Technical Comments, OCSPP provides
revised completion dates to the Draft Report's Table 1 to reflect how EPA tracks completion of
TSCA actions.
OIG RESPONSE 2: We have edited the table in the final report to indicate the signature
date as the date of completion.
The Draft Report also omits several additional TSCA actions and deadlines relevant to the scope
of this audit. This is significant given the stated purpose of the audit to determine whether EPA
met the deadlines required by TSCA and has the resources to meet future statutory deadlines.
Accordingly, in our Technical Comments, OCSPP adds several additional requirements and
deadlines to the Draft Report's Table 1, to reflect more accurately the scope of TSCA actions
completed in the timeframe of the OIG audit.
OIG RESPONSE 3: We have included the additional TSCA actions and deadlines to the
table in the final report.
1 See page 10 of the Report.
20-P-0247
16
-------
Finally, in the Draft Report, OIG indicates that EPA's resource planning process does not meet
Office of Personnel Management (OPM) requirements. The Agency position is that the
document entitled: "The Fiscal Year 2021 Justification of Appropriation Estimates for the
Committee on Appropriations,"2 (February 2020), meets OPM's requirements. In that
document, the Agency specifically states that "EPA has addressed the workforce planning
requirements of 5 CFR Part 250, Subpart B, Strategic Human Capital Management by
completing an EPA FY 2019 HCOP (Human Capital Operation Plan) and beginning work to
update the plan for FY 2020." Notwithstanding, in the proposed corrective actions, OCSPP
agrees to conduct additional specific analysis to implement the OIG's recommendations for
improvements to resource planning for the TSC A program.
OIG RESPONSE 4: While the EPA may have developed an FY 2019 HCOP, the OPPT
staff we interviewed clearly informed us in November 2019 that they had not participated
in the HCOP development process. Given the resource planning improvements that the
entire Agency is undertaking, we do not consider the FY 2021 congressional justification
document to be evidence of an endemic HCOP infrastructure and look forward to seeing
the OPPT's plans regarding the resources necessary to successfully implement the
ongoing TSCA amendment requirements.
II. Response to the Recommendations
Recommendation 1: Complete and publish the 2021 Annual Existing Chemical Risk
Evaluation Plan by the beginning of calendar year 2021 and include the anticipated
implementation efforts and required financial and staff resources to implement the actions
detailed in the plan.
OCSPP Response: OCSPP agrees, in part, with Recommendation 1. OCSPP agrees to publish
the 2021 Annual Existing Chemical Risk Evaluation Plan by the beginning of calendar year
2021. However, OCSPP disagrees with expanding the scope of the annual plan beyond what is
statutorily required. Congress specified its expectations for the content of the report3, and to
expand it would compete with resources required to implement TSCA and meet deadlines.
Further, Recommendation 2, to which OCSPP agrees, will address the OIG's request.
• Proposed Corrective Action 1: EPA will publish the 2021 Annual Existing Chemical
Risk Evaluation Plan consistent with the statutory requirements.
• Target Completion Date: January 2021
2 See page 775 of https://www.epa.gov/sites/productioii/files/2020-03/documents/fv21-ci-14-appendix.pdf.
3 See 15 U.S.C. 2625(n).
17
20-P-0247
-------
OIG RESPONSE 5: At a July 22, 2020 follow-up meeting to discuss Recommendation 1,
the Office of Chemical Safety and Pollution Prevention stated that, to meet the intent of the
OIG recommendation, it would add additional information from internal planning documents
to the annual plans, including the status of each risk evaluation, as well as the full-time
equivalent staff and extramural resources allotted for the given fiscal year. The Office of
Chemical Safety and Pollution Prevention provided the OIG with an example of the table that
will be included with the annual plans with such information. We concluded that this is an
acceptable corrective action. We consider this recommendation resolved with corrective
actions pending.
The July 22, 2020 meeting is documented in a July 28, 2020 memorandum, which we have
included in Appendix B of this report.
Recommendation 2: Conduct a workforce analysis that accurately assesses the capability of the
Office of Pollution Prevention and Toxics to implement the requirement of the Toxic Substances
Control Act.
OCSPP Response: OCSPP agrees with Recommendation 2. Specifically, OCSPP agrees to
develop a workforce analysis that is specifically focused on the Office of Pollution Prevention
and Toxics and its ability to implement the requirements of the Toxic Substances Control Act.
• Proposed Corrective Action 2: OCSPP will conduct a workforce analysis specifically
focused on the Office of Pollution Prevention and Toxics capability to implement the
requirements of the Toxic Substances Control Act.
• Target Completion Date: December 31, 2020
OIG RESPONSE 6: The Agency agreed with Recommendation 2 and provided an
acceptable corrective action and estimated completion date. We consider this
recommendation resolved with corrective actions pending.
Recommendation 3: Specify what skill gaps must be filled to achieve the Toxic Substances
Control Act implementation capacity and how and when those gaps will be filled in the fiscal
year 2021 workforce plan that the EPA agreed to develop in their Corrective Action Plan to the
U.S. Office of Personnel Management.
OCSPP Response: OCSPP agrees with Recommendation 3. OCSPP will use the workforce
analysis developed in response to Recommendation 2 to identify skill gaps and develop a hiring
plan to fill it the remaining identified gaps.
• Proposed Corrective Action 3: OCSPP will complete a skills gap analysis by March 31,
2021 and will utilize its hiring plan to fill it the remaining identified gaps.
• Target Completion Date: March 31, 2021
20-P-0247
18
-------
OIG RESPONSE 7: The Agency agreed with Recommendation 3 and provided an
acceptable corrective action and estimated completion date. We consider this
recommendation resolved with corrective actions pending.
cc: All OCSPP DAAs
Program Office OD, DOD
Jeff Harris
OIG Team Members
Janet L. Weiner, OCSPP Audit Liaison
OPPT Program Office Audit Liaison
20-P-0247
19
-------
Appendix B
Supplemental Comments on Draft Report
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF CHEMICAL SAFETY
AND POLLUTION PREVENTION
MEMORANDUM
SUBJECT: Amended Corrective Action Plan for Draft Report No. 19-P-0127 (Evaluation of
Lautenberg Act Resource Planning and Management)
The Office of Chemical Safety and Pollution Prevention (OCSPP) has reviewed the April 24,
2020 Draft Report, and with this memo amends our proposed Corrective Action Plan for
Recommendation 1. OCSPP believes this amended Corrective Action Plan will address the
concerns raised by the Office of the Inspector General in the Draft Report No. 19-P-0127
(Evaluation of Lautenberg Act Resource Planning and Management).
Amended Response to Recommendation 1:
Recommendation 1: Complete and publish the 2021 Annual Existing Chemical Risk Evaluation
Plan by the beginning of calendar year 2021 and include the anticipated implementation efforts
and required financial and staff resources to implement the actions detailed in the plan.
Amended Corrective Action: OCSPP maintains that it has met the statutory requirements of
TSCA since enactment by submitting an Annual Plan which describes the schedule and the
resources necessary for the completion of each Risk Evaluation for the year. However, to be
responsive to the OIG recommendation, OCSPP will add additional information from internal
planning documents to this Annual Plan, including the status of each Risk Evaluation and the
FTE and extramural resources alloted for the given Fiscal Year. EPA will publish the 2021
Annual Existing Chemical Risk Evaluation Plan consistent with the statutory requirements.
FROM: Alexandra Dapolito Dunn
Assistant Administrator
ALEXANDRA
DAPOLITO DUNN
Digitally signed by
ALEXANDRA QAPOLfTO DUNN
Date: 2020u07-2& 09:51 <07
-WOO'
TO:
Sean W. O'Donnell
Inspector General
20-P-0247
20
-------
Target Completion Date: January 31, 2021
OIG RESPONSE 1: The Agency provided an acceptable corrective action and estimated
completion date for Recommendation 1. We consider this recommendation resolved with
corrective actions pending.
If you have questions or concerns regarding this response or the proposed Corrective Action
Plan, please contact the OCSPP Audit Liaison, Janet Weiner at (202) 564-2309.
cc: All OCSPP DAA/AAAs
Program Office OD, DODs
Jeffrey Harris, OIG
Jee Kim, OIG
Ryan Maxwell, OIG
Thane Thompson, OIG
Michael Wilson, OIG
Janet L. Weiner, OCSPP Audit Liaison
John Latham, OPPT Program Office Audit Liaison
Susanna Blair, OPPT
20-P-0247
21
-------
Appendix C
Distribution
The Administrator
Assistant Deputy Administrator
Associate Deputy Administrator
Chief of Staff
Deputy Chief of Staff/Operations
Assistant Administrator for Chemical Safety and Pollution Prevention
Agency Follow-Up Official (the CFO)
Agency Follow-Up Coordinator
General Counsel
Associate Administrator for Congressional and Intergovernmental Relations
Associate Administrator for Public Affairs
Principal Deputy Assistant Administrator for Chemical Safety and Pollution Prevention
Deputy Assistant Administrator for Chemical Safety and Pollution Prevention
Deputy Assistant Administrator for Management, Office of Chemical Safety and
Pollution Prevention
Director, Office of Continuous Improvement, Office of the Administrator
Director, Office of Pollution Prevention and Toxics, Office of Chemical Safety and
Pollution Prevention
Audit Follow-Up Coordinator, Office of the Administrator
Audit Follow-Up Coordinator, Office of Chemical Safety and Pollution Prevention
Audit Follow-Up Coordinator, Office of Pollution Prevention and Toxics, Office of Chemical
Safety and Pollution Prevention
20-P-0247
22
------- |