UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF
INSPECTOR GENERAL
April 28, 2009
MEMORANDUM
SUBJECT: EPA's Key Management Challenges for Fiscal Year 2009
TO:
Lisa P. Jackson
Administrator
We are pleased to provide you with the list of items the Office of Inspector General
(OIG) considers to be key management challenges for Fiscal Year 2009 confronting the
U.S. Environmental Protection Agency (EPA). Last year, we developed a definition for
management challenges to clarify and distinguish between internal control weaknesses and
management challenges. In general, internal control weaknesses are deficiencies in internal
control activities determined in relation to a standard derived from the concept of internal control
as an activity. In contrast, management challenges are defined as a lack of capability derived
from internal self-imposed constraints or, more likely, externally imposed constraints that
prevent an organization from reacting effectively to a changing environment. For example, lack
of controls over approval of bankcard purchases would be considered a control weakness
because it can be corrected internally by adding the necessary controls. Conversely, the
Agency's ability to address an issue, such as funding shortfalls for water infrastructure repairs,
would constitute a management challenge, as the Agency does not have the ability to solve these
challenges without outside assistance, such as from Congress and States.
We based our decision to include the areas listed primarily on audit, evaluation, or
investigative work we performed and additional analysis of Agency operations. Thus, additional
challenges may exist in areas that we have not yet reviewed or where other significant findings
could result from additional work. We listed our key management challenges below with
detailed summaries provided in the Attachment.
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Management Challenges
Page
Management of Stimulus Funds
1
EPA's Organization and Infrastructure
3
Performance Measurement
5
Threat and Risk Assessments
8
Water and Wastewater Infrastructure
9
Meeting Homeland Security Requirements
11
Oversight of Delegations to States
14
Chesapeake Bay Program
16
Voluntary Programs
18
Safe Reuse of Contaminated Sites
20
This year we added three challenges: 1) Management of Stimulus Funds; 2) Voluntary Programs;
and 3) Safe Reuse of Contaminated Sites. While the Agency has taken steps and has worked
diligently to address requirements under the American Recovery and Reinvestment Act, we
believe it is a potentially vulnerable area due to the amount of funding and additional oversight
requirements. We would welcome the opportunity to discuss your reaction to our list of
challenges and any comments you might have.
Bill A. Roderick
Acting Inspector General
Attachment
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Attachment
Management of Stimulus Funds
The President signed the American Recovery and Reinvestment Act (Recovery Act, or ARRA)
on February 17, 2009. The Recovery Act provided EPA with $7.2 billion, roughly equal to
EPA's Fiscal Year (FY) 2009 appropriation, for the following six existing programs:
• $4 billion to the Clean Water State Revolving Fund to provide loans and grants that help
communities upgrade wastewater treatment systems.
• $2 billion to the Drinking Water State Revolving Fund to provide loans and grants for
drinking water infrastructure.
• $600 million to the Hazardous Substance Superfund for site clean-up.
• $300 million to the Diesel Emissions Reduction Act Program for projects that reduce
diesel emissions.
• $200 million to the Leaking Underground Storage Tank Trust Fund Program for clean-up
of underground storage tank petroleum leaks.
• $100 million to the Brownfields Program for grants to assess, clean, and help revitalize
eligible Brownfield sites.
The purpose of the Recovery Act as it applies to EPA is to preserve and create jobs, promote
economic recovery, and invest in environmental protection and other infrastructure that will
provide long-term economic benefits. EPA leadership is showing a strong commitment to
ensuring Recovery Act funds are used for their intended purposes and are meeting the objectives
of the Act. The Agency has done considerable work in establishing an infrastructure to mitigate
the challenges and to ensure overall management and stewardship of ARRA funds. The Agency
quickly established a Recovery Act Steering Committee and Subcommittees to focus on specific
areas. Early on the OIG was invited to participate in each of these key committees. EPA is also
developing a stewardship plan to reinforce internal controls over the funds. This plan will
address Office of Management and Budget's (OMB 's) requirement for agencies to have risk
mitigation strategies for Recovery Act funding.
While the Agency has taken steps and is working diligently to address Recovery Act
requirements it will face significant challenges in meeting all of the Recovery Act requirements
while at the same time carrying out its ongoing environmental programs. In addition, EPA will
have to ensure that requisite environmental approvals, such as those required by the National
Environmental Policy Act, are obtained in a timely fashion for projects funded through other
agencies' ARRA funds.
Managing recipients' activities to achieve the above purposes while commencing expenditures
and activities as quickly as possible will present further challenges. Most Recovery Act funds
will be awarded through assistance agreements or contracts. EPA grants and contracts personnel
will have to manage the stimulus grants and contracts in addition to their normal workloads.
Although EPA may set aside anywhere from 1 to 3.5 percent of ARRA funds for management
and oversight purposes, EPA will be challenged to have sufficient, trained staff to award and
monitor grants and contracts. If EPA does not assign sufficient staff to ARRA oversight, the
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Agency increases the risk of fraud, waste, and abuse of federal funds. It will also increase the
risk that EPA will award funds to entities that do not have adequate administrative and
programmatic capabilities to efficiently and effectively carry out the work. EPA will also need
to focus considerable attention on ensuring that Recovery Act funds produce desired results and
minimize cost overruns and project delays.
The grants EPA awards with Recovery Act funding will contain new conditions that require
additional monitoring and oversight. The Act states that grant funds should be awarded to
recipients that will maximize job creation and economic benefits. As EPA competes these grants
it must consider these additional factors along with other ranking factors the laws and regulations
require. For example, the Recovery Act requires each State to use at least 50 percent of the
Clean and Drinking Water State Revolving Loan Fund amounts for forgiveness of principal,
negative interest loans, or grants. The Act also stipulates that to the extent that there are
sufficient eligible projects, at least 20 percent of the State Revolving Fund allotments are to fund
projects to address green infrastructure, water or energy efficiency improvements, or other
environmentally innovative activities. EPA also will need to more closely monitor ARRA funds
because, unlike current programs, ARRA-funded grants do not require a match by the recipient
and there are provisions for loan forgiveness, so not all funds will have to be repaid. These
provisions increase the risk of fraud, waste, and abuse.
EPA will rely heavily on State agencies, as the primary fund recipients, to properly manage sub-
recipients of funds awarded under each of these programs. For the State Revolving Funds, EPA
provides funding to States that in turn award funding to a local government entity. The local
government then awards contracts for water infrastructure construction. Given the significant
economic problems many States face, they may not have the resources to properly oversee these
funds. In addition, EPA may not have the information needed to identify fraud, waste, and abuse
at the level where a majority of funds are expended. Currently, OMB is only requiring States to
report information down to the sub-recipient level. If OMB does not develop a means and a
requirement to collect data below the sub-recipient level, EPA will not have the information to
identify potential fraud, waste, and abuse at the level where it is most likely to occur.
For the Superfund program, activities under the Recovery Act will generally be funded through
contracts. With the emphasis on awarding funds and getting work started quickly, there is a risk
that the contractors will not be ready and able to accept the additional work. While EPA plans
on using existing contracts to obligate Recovery Act funds, the additional funds may result in the
contracts reaching cost ceilings earlier than expected and needing to be re-competed earlier than
planned. These additional activities will strain the current acquisition workforce. Remedial
Action Contracts are a primary acquisition vehicle that the EPA Superfund program uses to
conduct long-term clean-up and remediation support activities. A prior OIG report identified
risks in managing such contracts. The process for determining contractor award amounts and
whether they would be granted was burdensome. The complex contract award fee process
resulted in excessive award fees to the contractor, and EPA viewed the award fees as more of an
expectation for contractors rather than a factor to motivate excellence among the contractors.
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EPA's Organization and Infrastructure
In July 1970, the first Administrator formally organized EPA based upon existing environmental
legislation that encompassed discrete media programs for water, air, pesticides, radiation, and
solid waste, as well as 10 regional offices and a laboratory structure inherited from other federal
agencies.1 Since that time Congress has delegated many additional responsibilities to EPA. For
example, in recent years, Congress assigned EPA Homeland Security responsibilities.2 In
addition, how EPA carries out its programs has changed from program implementation to
delegations to States, with EPA's role involving planning and State oversight. In recent years,
EPA has increased the extent to which it partners with other federal agencies; State, local, and
tribal governments; and the private sector to accomplish its mission.3 EPA also uses voluntary
programs to assist in accomplishing its mission.
Since its inception, the number of EPA personnel has grown from about 5,000 to over 17,000.
As the number of personnel has increased, so has EPA's infrastructure. EPA's portfolio now
includes offices and laboratories in nearly 140 locations throughout the country. Most EPA
regions maintain the majority of staff in a main regional office. Some also maintain a number of
separate operations offices.4 For example, California and Florida each have seven separate EPA
offices. EPA also maintains two offices each in Guam, Puerto Rico, and the Virgin Islands.
EPA's Headquarters is made up of four environmental media offices and an additional eight
offices that comprise a mixture of administrative, research and development, enforcement, and
program support offices. The Office of Enforcement and Compliance Assurance maintains a
large Headquarters component, staff in regional offices, and 27 additional locations that house
5 or less staff. According to the Office of Enforcement and Compliance Assurance, these small
offices are necessary to carry out investigative work in various geographic locations. Likewise,
the Office of Research and Development is centrally located in Headquarters and maintains 13
laboratories across the country in addition to EPA's regional and other program office labs. The
Office of Solid Waste and Emergency Response has personnel in Headquarters and each regional
office and also maintains small (l-or-2-person) offices at numerous clean-up sites throughout the
country.
1 EPA-OIG Report, Studies Addressing EPA's Organizational Structure, Report No. 2006-P-00029, August 16,
2006.
2 US EPA, EPA Strategic Plan for Homeland Security, September 2002.
3 US EPA, Office of State and Local Relations, Joint Policy on State/EPA Relations, July 14, 1994.
4 EPA-OIG Report, Congressionally Requested Report on EPA Staffing Levels and Total Costs for EPA Facilities,
Report No. 09-P-0080, January 14, 2009.
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EPA Facility Locations
¦d.-trir
~ ~
Denotes Regional Office
Guam, Puerto Rico
Virgin Islands, N Mariana"
*V*:
Of EPA's 140 facilities, there are 97 with 5 or fewer employees. The Agency's current strategic
plan calls for having the "right people, in the right place, at the right time." However, since
EPA's formation in 1970, a comprehensive study has not been completed to analyze EPA's
mission, organization, and the related number and location of employees needed to most
effectively carry out EPA's mission at the least cost. For example, with the increase in programs
delegated to States, EPA's role and ability to conduct effective oversight of States becomes
increasingly important. EPA might consider evaluating costs and benefits realized by those
regions maintaining separate smaller operations offices in States versus maintaining large
regional offices. EPA might also consider conducting a review of the rationale and benefits
associated with maintaining its cadre of regional and research and development laboratories
around the country to determine whether they are sited and staffed appropriately for the type of
work performed.
Maintaining nearly 140 facilities is resource-intensive and cost the Agency about $300 million
for FY 2008. Demonstrating the cost effectiveness of maintaining such a large number of
locations presents EPA with challenges and opportunities for potential consolidation and cost
efficiencies. Because of the autonomous nature of EPA and its regional and local offices,
undertaking such a study may require the assistance of an independent commission and
agreement from EPA's oversight committees. With diminishing resources along with growing
pressure to expand EPA's role in the global arena, EPA will be challenged to produce operating
efficiencies while expanding its mission. A comprehensive study to assess EPA's mission,
workforce, and infrastructure requirements would provide a rational basis for addressing these
challenges.
1EPA-OIG analysis of EPA Office of Human Resources data.
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Performance Measurement
Congress' desire to hold agencies accountable for performance was the motivating force behind
the Chief Financial Officers Act of 1990 and the Government Performance and Results Act
(GPRA) of 1993. The Chief Financial Officers Act established the foundation for improving
management and financial accountability. GPRA created requirements for agencies to generate
performance information that congressional and executive branch decision-makers need in
considering measures to improve government and reduce costs.6
EPA has been recognized for its efforts to align budgeting, planning, and accounting systems to
track and report on resource use. However, EPA continues to be challenged in measuring human
health and environmental results of its environmental programs. Despite the vast array of data
reported and contained in EPA's information systems, the Government Accountability Office
(GAO), States, regulated entities, and EPA have pointed out that the Agency does not have much
of the information it needs pertaining to environmental conditions and trends and potential
human health risks of various pollutants. This makes it difficult to evaluate and report on
benefits derived from environmental activities and make optimal decisions about how to invest
EPA's resources to maximize environmental results.7
In 2006, we found that many of EPA's programs received high scores for the program purpose
and program management categories on OMB's Program Assessment Rating Tool. However,
EPA did not receive high marks for using information to manage programs and demonstrate
results. Of the 51 programs reviewed, 41 percent (21 programs) did not regularly collect timely
and credible performance information, including information from key program partners, nor use
the information to manage the program and improve performance.8
Our recent evaluations have identified other limitations with EPA performance measures. For
example, in its FY 2006 Performance and Accountability Report, EPA reported radon
performance data without including meaningful baseline measures for comparison.9 In addition,
we identified several limitations with the National Emissions Inventory upon which EPA
primarily bases its performance measures for the Air Toxics Program.10 These limitations
include a heavy reliance on emissions factors that may be inaccurate, as well as the incorporation
of data from various sources that may use different methodologies to estimate emissions.
Further, we found that EPA's 2008 Strategy for Sustainable Ports lacks appropriate performance
measures, milestones, and other management controls that would enable the Agency to transform
its strategic goals into measurable results.11
6 Chief Financial Officers Act of 1990 and the Government Performance and Results Act of 1993.
7 EPA-OIG Report, Using the Program Assessment Rating Tool as a Management Control Process, Report No.
2007-P-00033, September 12, 2007.
8 EPA-OIG Report, Using the Program Assessment Rating Tool as a Management Control Process, Report No.
2007-P-00033, September 12, 2007.
9 EPA-OIG Report, More Action Needed to Protect Public from Indoor Radon Risks; Report No. 08-P-0174, June 3,
2008.
10 EPA-OIG Report, Improvements in Air Toxics Emissions Data Needed to Conduct Residual Risk Assessments;
Report No. 08-P-0020, October 31, 2007.
11 EPA-OIG Report, EPA Needs to Improve Its Efforts to Reduce Air Emissions at U.S. Ports, Report No. 09-P-
0125, March 23, 2009.
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Measuring environmental performance and demonstrating results is inherently challenging.
Results are not always immediately recognized and programs may take several years to
demonstrate results. In addition, linking environmental activities to outcomes is complicated by
a myriad of external factors, including weather, international environmental issues, economic
activity, and others outside of EPA's control.12 As a result, many of EPA's current performance
measures focus on program activities13 (number of enforcement actions, pounds of hazardous
waste reduced, number of permits issued, number of training sessions held, etc.). While these
may be good indications of amount of work performed, they do not measure the corresponding
improvements to human health or the environment.
Further, a majority of EPA's program performance information is collected and reported by
program partners, some under voluntary arrangements, who do not always agree on how and
what information should be collected, tracked or validated, and who do not report the
information to EPA in a consistent manner.14 15 For example, our reviews noted that only 2 of 30
EPA Performance Track members met their environmental improvement commitments,16 the
Pollution Prevention program had no independent validation of results claimed by industry,17
and EPA's ENERGY STAR program's reported savings claims were inaccurate and reported
annual savings unreliably.18
On a broader scale, EPA has worked for the past several years to develop and use environmental
indicators. These indicators are scientifically developed, peer reviewed measures that seek to
demonstrate trends in the condition of the Nation's environment. EPA publishes this information
in its "Report on the Environment" to provide the public important information on air, water,
land, human health, and ecological conditions. While the Report provides a broad perspective on
trends, both positive and negative, on the state of the environment, it also spells out the
limitations, gaps, and challenges EPA faces in gathering and analyzing information. As a result,
the report can only provide partial answers to key environmental questions.19
To address these factors, EPA management needs to make a concerted effort to focus on the
logic of program design and ensure that the design includes consideration of the performance
information necessary to measure, evaluate, and demonstrate results for the resources used.
Designing programs with clear and measurable results allows for transparency of, and
12 EPA-OIG Report, EPA 's Progress in Using the Government Performance and Results Act to Manage for Results,
Report 2001-B-000001, June 13, 2001.
13 US EPA, EPA Strategic Plan 2006-2011, September 30, 2006.
14 EPA-OIG Report, EPA 's Progress in Using the Government Performance and Results Act to Manage for Results,
Report No. 2001-B-000001, June 13, 2001.
15 EPA-OIG Reports, Voluntary Greenhouse Gas Reduction Programs Have Limited Potential, Report No. 08-P-
0206; Measuring and Reporting Performance Results for the Pollution Prevention Program Need Improvement,
Report No. 09-P-0088; and Improvements Needed to Validate Reported ENERGY STAR Benefits, Report No. 09-P-
0061.
16 EPA-OIG Report, Performance Track Could Improve Program Design and Management to Ensure Value, Report
No. 2007-P-00013, March, 29, 2007.
17 EPA-OIG Report, Measuring and Reporting Performance Results for the Pollution Prevention Program Need
Improvement, Report No. 09-P-0088, January 28, 2009.
18 EPA-OIG Report, Improvements Needed to Validate Reported ENERGY STAR Benefits, Report No. 09-P-0061,
December 17, 2008.
19 US EPA. 2008 Report on the Environment, EPA/600/R-07/045F, May 2008.
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accountability for, program performance. Program design and the strategic planning process
should include defining measures as well as ensuring the appropriate agreements, funding,
processes, and systems are considered to obtain the necessary information. EPA also needs to
ensure program managers are held accountable for ensuring that programs are designed with the
means to measure and demonstrate program results and that the information gathered is used to
manage and improve program results.20
20 EPA-OIG Report, Using the Program Assessment Rating Tool as a Management Control Process, Report No.
2007-P-00033, September 12, 2007.
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Threat and Risk Assessments
Last year we noted that it had been nearly 20 years since the Science Advisory Board
recommended that EPA target its environmental protection efforts on the basis of opportunities
for the greatest risk reduction. A 1990 Science Advisory Board report described the fragmentary
nature of U.S. environmental policy and the frequently inconsistent and uncoordinated efforts to
address environmental problems. Based on our body of work, including recent reports on the
Agency's enforcement and air programs, we believe the same problem exists today. The
fragmentary nature of EPA's approach continues because underlying conditions remain:
environmental laws often focus on a single media or threat, Agency goals and units are designed
to implement separate legislative mandates, and available technological solutions address
specific pollutant sources. Some EPA programs - like the Chesapeake Bay Program and the
Border 2012 Program - are designed to address ecosystem or geographically-defined
environmental issues rather than single media concerns. However, even these are organized and
implemented to solve threats and risks faced by individual media (e.g., Border 2012 goals are to
reduce water contamination, reduce air pollution, reduce land contamination, etc.).
The relative threats and risks to human health and the environment are not assessed or used
based on the highest priority. In our review of the Indoor Radon Abatement Program, we found
that the Agency had not been reporting program results in relation to homes at risk in its
performance reporting. In our review of the Clean Air Act Risk Management Plan for airborne
chemical releases, we found that many lower-risk facilities were inspected or audited when many
high-risk facilities had never been inspected or audited.21
The U.S. Chemical Safety and Hazard Investigation Board's investigation of the 2005 BP Texas
City Refinery explosion linked the accident to corporate spending decisions in the 1990s when
low oil prices triggered cutbacks in maintenance, training, and operator positions at the plant.
Mindful of this finding and other accidents that occurred when companies cut back on process
safety measures in economic downturns, the Board Chairman released a video-taped safety
message in December 2008 urging all chemical companies and refineries to maintain process
safety measures even during a recession.22 The current state of the U.S. economy only increases
the need for EPA to ensure that all high-risk facilities are inspected. As these examples
illustrate, we have observed little change in the Agency's inclination to develop and apply threat
and risk assessments in decision making in the past year.
21 EPA-OIG Report, EPA Can Improve Implementation of the Risk Management Program for Airborne Chemical
Releases, Report No. 09-P-0092, February 10, 2009.
22 US Chemical Safety and Hazard Investigation Board news release on December 22, 2008.
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Water and Wastewater Infrastructure
Approximately 160,000 public drinking water systems provide the Nation with drinking water,
while 16,000 sewage treatment plants treat and dispose of wastewater.23 Under the Clean Water
Act and Safe Drinking Water Act, water and wastewater facilities are responsible for treating
water to specified levels. EPA is responsible for administering these laws and has a role in
assisting these facilities to meet their treatment requirements.
According to EPA, each year there are approximately 240,000 water main breaks and 75,000
sewer overflows, resulting in public health threats.24 Some of the Nation's water infrastructure
systems have components over 100 years old. The American Society of Civil Engineers recently
assigned an overall "D" grade in its Report Card for America's Infrastructure25 and "D-" to
drinking water and wastewater.26 As an example of the magnitude of costs, a single city, the
District of Columbia, has estimated that it will need to expend $3.6 billion to meet various
requirements of the Clean Water Act.27 Nationally, EPA has estimated that approximately
$1 trillion will be needed to pay for water and wastewater infrastructure over the next 20 years.28
EPA estimates that utilities are only planning to spend about half that amount. The remaining
$500 billion has been termed the "water and wastewater infrastructure gap." The gap represents
infrastructure failures that could increase risks to public health and the environment, as well as
damage the national economy.
Meeting standards requires regular investment for treatment plants and distribution systems.
Water and wastewater facilities have made considerable capital expenditures. Local
governments spend more on water infrastructure than they do on everything else except
education.29 However, many drinking water and wastewater systems are failing to keep up with
repairs and new construction required to maintain compliance with federal standards. Many
systems still need to build new facilities and distribution systems, and repair and replace aging
infrastructure. Further, increasingly stringent standards could compel systems to make even
more extensive capital improvements. For example, many wastewater treatment plants are
beginning to install costly nutrient removal technologies. Drinking water facilities will also need
to meet new standards. Between January 2006 and December 2007, EPA issued three new
rules30 and made substantial revisions to the existing Lead and Copper Rule. Implementation
23 US EPA, "Safe Drinking Water Act - Basic Information" Website; and US Department of Energy, Energy
Efficiency and Renewable Energy, Federal Energy Management Program, Biomass and Alternative Methane Fuels
Fact Sheet, July 2004.
24 US EPA, Office of Research and Development, National Risk Management Research Laboratory, Aging Water
Infrastructure Research Program, Addressing the Challenge through Innovation, EPA/600/F-07/015, September 2007.
25 American Society of Civil Engineers 2009 Report Card for America's Infrastructure - full report.
26 American Society of Civil Engineers 2009 Report Card for America's Infrastructure - drinking water and
wastewater report cards.
27 The National Association of Clean Water Agencies, Power Point presentation on CSOs (2007).
28 US EPA, Office of Ground Water and Drinking Water, The Clean Water and Drinking Water Infrastructure Gap
Analysis, EPA-816-R-02-020, September 2002; US EPA, Clean Watersheds Needs Survey - Overview Page; and
US EPA, Drinking Water Infrastructure Needs Survey and Assessment, 2007.
29 US Conference of Mayors, Mayors Water Council, Who Pays for the Water Pipes, Pumps, and Treatment Works?
Local Government Expenditures on Sewer and Water - 1991 to 2005.
30 Final Ground Water Rule (November 2006), Long Term 2 Enhanced Surface Water Treatment Rule (January
2006), and the Stage 2 Disinfection Byproducts Rule (January 2006).
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will increase costs through upgrades to meet new requirements, so the infrastructure gap could
continue to grow in size.
The Federal Government does not have a national approach to bridging the water and wastewater
infrastructure gap. EPA's Clean Water and Drinking Water State Revolving Funds received
about $1.6 billion in federal capitalization grants in FY 2008.31 Congress added $6 billion to
these funds in the 2009 ARRA. The U.S. Departments of Housing and Urban Development and
Agriculture also provided grant and loan assistance of about $2 billion in FY 200632 and received
funding through the ARRA. However, these programs are small in relation to the gap and are
not part of a comprehensive investment strategy to address water infrastructure needs; they
reflect each agency's mission and congressional direction.
EPA also addresses the gap by advocating for its "Four Pillars of Sustainable Infrastructure."33
One pillar is "full cost pricing." Little has changed since a 2001 GAO survey that indicated
more than 40 percent of wastewater systems were not generating enough revenue to cover their
full cost of service, and about 30 percent deferred maintenance because of insufficient funding.34
EPA supplements its "full-cost pricing" advocacy with programs organized around the remaining
three pillars: "Effective Management," "Water Efficiency," and "Watershed Approaches." The
Office of Water's "Better Management" Website contains several links to information geared at
improving management practices within the water sector.35 EPA has also established a "National
Alliance for Water Efficiency."36 Other incremental programs, such as EPA's advocacy for
"green infrastructure" to reduce storm runoff, contribute to reducing infrastructure needs.37
EPA's current approach, based on providing a relatively small amount of funding to State
Revolving Funds, and operating programs such as those under the "Four Pillars of Sustainable
Infrastructure," is helpful. Other federal agencies contribute. However, this approach does not
represent a cohesive national strategy for resolving the problem of aging infrastructure. A
comprehensive approach would realistically assess the investment requirements, and work with
States and local governments to organize resources to meet needs. It would also alert the public
and Congress of unfunded liabilities and risks. While EPA has responsibility for administering
the Clean Water and Safe Drinking Water Acts, it does not have resources or authority to address
this gap by itself. EPA needs to ensure there is a comprehensive federal understanding of the
risks to public health, the environment, and the economy if this critical resource gap remains
unresolved. EPA should also take the lead in organizing a coherent federal strategy within the
limits of its statutory authorities and responsibilities.
31 US EPA, Drinking Water State Revolving Fund Allotments; and US EPA, Clean Water SRF Federal
Capitalization Grants by Federal Fiscal Year of Award by State.
32 USDA Rural Development, Water and Environmental Programs, Annual Activity Report - Fiscal Year 2006, p. 6.
33 US EPA, "Sustainable Infrastructure for Water & Wastewater" Website.
34 GAO Report, Water Infrastructure - Information on Financing, Capital Planning, and Privatization, GAO-02-
764, August 16, 2002.
35 US EPA, "Sustainable Infrastructure for Water & Wastewater" Website, "Better Management" page.
36 EPA-OIG Report, Summary of Recent Developments in EPA 's Drinking Water Program and Areas for Additional
Focus, Report No. 08-P-0120, March 31, 2008, page 11.
37 US EPA, Testimony of Benjamin H. Grumbles, Assistant Administrator for Water, Before the Subcommittee on
Transportation Safety, Infrastructure Security, and Water Quality, of the US Senate Committee on Environment and
Public Works, September 19, 2007, page 10.
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Meeting Homeland Security Requirements
The World Trade Center and Pentagon terrorist attacks and Hurricanes Katrina and Rita, among
other national emergencies, elevated the Nation's expectations of EPA's emergency response
role. Over the last several years these expectations have formally expanded EPA's traditional
emergency response function. The 2004 National Response Plan, the 2008 National Response
Framework, and multiple Homeland Security Presidential Directives38 have established new
Federal homeland security requirements for EPA. The National Response Framework and
several Homeland Security Presidential Directives direct EPA to support, coordinate, or lead
responses to incidents of national significance, to include certain types of terrorist attacks or
natural disaster events. EPA established its first ever homeland security office in 2003.
EPA needs to ensure it is ready to meet its homeland security requirements. The Agency must
develop incident scenario plans that identify resources needed, planning assumptions, and
accountable EPA entities. In addition, Agency plans need to be coordinated and communicated
among all participating EPA entities as well as with outside federal, State, or local agencies that
may be responding alongside EPA to nationally significant incidents. Reports issued by our
office since 2003 have identified a number of concerns with EPA's homeland security-related
planning efforts and actions.39 Our reports40 show that EPA's plan for responding to incidents of
national significance (1) has undocumented assumptions and unsupported resource requirements,
(2) was developed with little internal or external coordination, (3) is missing key accountability
designations or process descriptions for handling crisis communications, (4) has not met
milestones for completing certain critical homeland security responsibilities, and (5) has not
38 US Department of Homeland Security, Preparedness and Response website, National Response Framework.
39 EPA-OIG Reports EPA Needs a Better Strategy to Measure Changes in the Security of the Nation's Water
Infrastructure, Report No. 2003-M-00016, September 11, 2003; EPA Needs to Assess the Quality of Vulnerability
Assessments Related to the Security of the Nation's Water Supply, Report No. 2003-M-00013, September 24, 2003;
Decline In EPA Particulate Matter Methods Development Activities May Hamper Timely Achievement of Program
Goals, Report No. 2003-P-00016, September 30, 2003; Survey Results on Information Used by Water Utilities to
Conduct Vulnerability Assessments, ReportNo. 2004-M-0001, January 20, 2004; EPA's Homeland Security Role to
Protect Air from Terrorist Threats Needs to be Better Defined, Report No. 2004-M-000005, February 20, 2004; EPA
Needs to Better Manage Counter Terrorism/Emergency Response Equipment, Report No. 2004-P-00011, March 29,
2004; EPA's Final Water Security Research and Technical Support Action Plan May Be Strengthened Through
Access to Vulnerability Assessments, Report No. 2004-P-00023, July 1, 2004; EPA Needs to Determine What
Barriers Prevent Water Systems from Securing Known Supervisory Control and Data Acquisition (SCADA)
Vulnerabilities, ReportNo. 2005-P-00002, January 6, 2005; EPA Needs to Fulfill Its Designated Responsibilities to
Ensure Effective BioWatch Program, Report No. 2005-P-00012, March 23, 2005; EPA Needs to Better Implement
Plan for Protecting Critical Infrastructure and Key Resources Used to Respond to Terrorist Attacks and Disasters,
Report No. 2006-P-00022, April 26, 2006; EPA Should Continue to Improve Its National Emergency Response
Planning, ReportNo. 08-P-0055, January 9, 2008; and EPA Plans for Managing Counter Terrorism/Emergency
Response Equipment and Protecting Critical Assets Not Fully Implemented, Report No. 09-P-0087, January 27,
2009.
40 EPA-OIG Reports Exit Memorandum for Preliminary Research of the Effectiveness of EPA 's Emergency
Response Activities, Report No. 2006-M-000004, February 24, 2006; EPA Should Continue to Improve Its National
Emergency Response Planning, Report No. 2008-P-0055, January 9, 2008; EPA Needs to Better Implement Plan for
Protecting Critical Infrastructure and Key Resources Used to Respond to Terrorist Attacks and Disasters, Report
No. 2006-P-0022, April 26,2006; and EPA Plans for Managing Counter Terrorism/Emergency Response Equipment
and Protecting Critical Assets Not Fully Implemented, Report No. 09-P-0087, January 27, 2009.
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established accountable entities in EPA with proper authority to complete certain critical
homeland security requirements.
Based on our concerns in this area, since 2004 we have identified "Homeland Security" as an
EPA management challenge.41 Prior to 2004, we identified our concerns in this area under the
"protection of critical infrastructure" management challenge.42 From FY 2005 to 2008, EPA
identified its efforts in support of Homeland Security as an Agency-level weakness43 and is
currently taking action to strengthen this area, such as: (1) expanding homeland security planning
coordination efforts with other Federal, State or local agencies; (2) recognizing a more complete
range of issues and information that must be considered when developing response plans for
incidents of national significance; (3) developing crisis communication plans and identifying
responsible parties and roles for crisis communications; and (4) completing basic Homeland
Security requirements.
In its FY 2008 Performance and Accountability Report, EPA closed its homeland security
management challenge on the basis that it "has completed all corrective actions associated with
this weakness."44 However, our review and follow-up shows that many actions are not complete
and that EPA continues to face challenges in accomplishing key actions, such as internal and
external coordination of plans. The Agency has not yet implemented recommendations from our
2008 report, and continues to request extensions in completing recommendations.45 The Agency
is also behind schedule in implementing the Radiation Ambient Monitoring System, which
provides real-time monitoring of environmental levels of radiation in the United States. As a
result, EPA may have less information about levels of radiation should a national radiological or
nuclear emergency occur 46 EPA has also not fully implemented a national equipment tracking
system that would be used to respond to another terrorist attack or major catastrophic event. The
nearly 2-year delay in implementing a functional national counter terrorism/emergency response
equipment tracking system may impair EPA's ability to protect public health and the
environment in the event of another terrorist attack or other nationally significant incident. EPA
needs to address these vulnerabilities and mitigate corresponding risks associated with them
through (1) improved monitoring of the Radiation Ambient Monitoring System contract; and
(2) established milestones, accountability, and resources for implementing the national counter
terrorism/emergency response equipment tracking system.
We plan to continue to monitor and report on EPA's progress in managing its homeland security
challenges. Completion of ongoing actions will help the Agency continue on a path toward
better management of the significant challenges posed by its homeland security responsibilities.
41 EPA-OIG Website, link to "EPA's Key Management Challenges" 2004-2007 EPA Management Challenges.
42 EPA-OIG Website, link to "EPA's Key Management Challenges" 2001-2003 EPA Management Challenges.
43 US EPA, Office of the Chief Financial Officer, 2005 Performance and Accountability Report, electronic page 5;
2006 Performance and Accountability Report, electronic page 8; and 2007 Performance and Accountability Report,
electronic page 5.
44 US EPA, Office of the Chief Financial Officer, 2008 Performance and Accountability Report, electronic page
516.
45 EPA-OIG Report, EPA Should Continue to Improve Its National Emergency Response Planning, Report No.
2008-P-0055, January 9, 2008.
46 EPA-OIG Report, EPA Plans for Managing Counter Terrorism/Emergency Response Equipment and Protecting
Critical Assets Not Fully Implemented, Report No. 09-P-0087, January 27, 2009.
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However, the challenge of planning and preparing for incidents of national significance,
including the potential for multiple terrorist attacks, will not end with completing ongoing
actions. The expansion of the Agency's current homeland security responsibilities will generally
require different thinking about how to respond, coordinate with others, and communicate in
nationally significant emergencies. In its December 2008 report on Superfund workload needs,
the Agency noted that homeland security represents a new and evolving workload, it is an area
expected to demand new resources, and homeland security workload needs are understaffed.47
In addition to the physical and resource challenges, EPA will also have to change how its
managers think about emergency response. EPA will have to expand its emergency planning
process to include more internal organizations, as well as external organizations. Previously
uninvolved EPA components will have to accept responsibility for planning and coordinating
support to emergency response. These internal and external lines of communication and
coordination will have to be confirmed and tested to maintain a credible capability outside
normal practice. Even when unused, homeland security responsibilities must be accepted as
Agency requirements that compete with current mission needs.
47 US EPA Superfund Workload Assessment Report, OSWER Document 9200-2-81, December 2, 2008, page 28.
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Oversight of Delegations to States
EPA's oversight of State programs requires improvement. GAO48 and our office49 have reported
that EPA has made some progress in this area; however, there are a number of factors and
practices that reduce the effectiveness of Agency oversight. Key among these are limitations in
the availability, quality, and robustness of program implementation and effectiveness data, and
limited Agency resources to independently obtain such data. Differences between State and
federal policies, interpretations, and priorities make effective oversight a challenge.
EPA's mission is to protect human health and the environment. To accomplish its mission, EPA
develops regulations and establishes programs that implement environmental laws. These
programs may be delegated to State, local, and tribal agencies that request to take primacy of the
program. Delegation, however, does not abrogate EPA of its statutory and trust responsibilities
for protecting human health and the environment. EPA performs oversight of State, local, and
tribal programs in an effort to provide reasonable assurance that delegated programs are
achieving their goals. In addition to regulatory programs, EPA sponsors voluntary partnerships
and programs with more than 10,000 industries, businesses, nonprofit organizations, and State
and local governments on more than 40 pollution prevention programs and energy conservation
efforts. Dealing with partners requires different types of management approaches and controls
than when dealing with parties that require oversight. EPA does not have the resources to
effectively administer all its responsibilities directly. EPA relies heavily on local, State, and
tribal agencies for compliance and enforcement and to obtain performance data. In its FY 2007
Performance and Accountability Report, EPA states it delegated the responsibility for issuing
permits and for monitoring and enforcing compliance to the States and tribes.50
A critical management challenge to EPA is oversight of its delegations to States. Federal
environmental statutes grant EPA a significant role in implementing the intent of the law, and
also authorize a substantial role for States. Federal intent is to give all citizens an equal level of
environmental protection. However, quality data is often lacking to ensure that the intent of the
law is met. For example, EPA lacks the data necessary to assess the benefits of its air toxics
standards, such as decreased incidence of cancer. Data on the program's effectiveness, such as
changes in emissions, concentrations of air toxics in the (ambient) outdoor air, and data on
compliance with air toxics standards are limited and inconclusive.51 Also, Federal requirements
establish consistency for businesses and within industries nationwide. States' discretion adds
flexibility to address specific circumstances and local issues. Joint implementation and
enforcement leads to special challenges in interpretations, strategies, and priorities.
EPA has improved its oversight by implementing the State Review Framework. The Framework
is intended to be a consistent approach for overseeing programs and identifying weaknesses and
48 GAO Report, EPA-State Enforcement Partnership Has Improved, But EPA 's Oversight Needs Further
Improvement, GAO-07-883, July 31, 2007.
49 EPA-OIG Report, Despite Progress, EPA Needs to Improve Oversight of Wastewater Upgrades in the
Chesapeake Bay Watershed, Report No. 08-P-0049, January 8, 2008.
50 US EPA, Office of the Chief Financial Officer, 2007 Performance and Accountability Report - Environmental
Progress, November 13, 2007.
51 GAO Report, EPA Should Improve the Management of Its Air Toxics Program, GAO-06-669, June 23, 2006.
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areas for improvement. However, EPA has not yet implemented it in a consistent manner. GAO
reported that EPA has made substantial progress in improving priority setting and enforcement
planning with States. However, GAO concluded that EPA's oversight needed further
enhancement. For example, State Revolving Fund reviews show that EPA has limited ability to
determine whether States are performing timely and appropriate enforcement, and whether
penalties are applied to environmental violators in a fair and consistent manner within and
among States.52 We found that EPA did not exercise effective enforcement oversight of facilities
with National Pollutant Discharge Elimination Systems permits in significant long-term
noncompliance.53 The situation was also exacerbated by a lack of complete and accurate records
of permit compliance and enforcement actions.
Our 2009 evaluation of the Clean Air Act Risk Management Program for airborne chemical
releases found that not all States delegated authority to operate the Clean Air Act Title V
Program are properly addressing Risk Management Program requirements during the permitting
process.54 Of the eight States reviewed, five States used conditional language in their Title V
permits which, according to the Title V Manager, is not sufficient.
In other reports, we noted that EPA's oversight of State activities or data needs to be improved to
make accurate assessments of performance and results. For example, about 20,000 lung cancer
deaths each year in the U.S. are related to indoor exposure to radon.55 Although EPA established
programs in the late 1980s and early 1990s to assist consumers in identifying and obtaining
reliable radon measurements and analyses, in 1998 EPA disinvested in these programs. Since
then EPA has not had data to support the claim that radon test kits or radon testers are reliable.
EPA's regional offices are responsible for oversight of vehicle inspection and maintenance (I/M)
programs,56 including ensuring that State I/M programs meet State Implementation Plan
commitments. Our nationwide survey of all 10 EPA regions, covering 34 I/M programs,
indicated that EPA had not been obtaining sufficient information to ensure that States met their
I/M program commitments. As a result, EPA did not have reasonable assurance that emission
reductions claimed by some I/M programs were achieved.
In our view, while EPA has improved its oversight of delegated programs, issues are complex
and changeable. Effective oversight of delegations to States is a continuous management
challenge that requires an agile organization, accurate data, and consistent interpretations of
policy. To provide effective oversight, the Agency must address limitations in the availability,
quality, and robustness of program implementation and effectiveness data.
52 GAO Report, EPA-State Enforcement Partnership Has Improved, but EPA 's Oversight Needs Further
Improvement, GAO-07-883, July 31, 2007.
53 EPA-OIG Report, Better Enforcement Oversight Needed for Major Facilities With Water Discharge Permits in
Long-Term Significant Noncompliance, Report No. OIG-2007-P-00023, May 14, 2007.
54 EPA-OIG Report, EPA Can Improve Implementation of the Risk Management Program for Airborne Chemical
Releases, Report No. 0PE-FY08-0001, December 18, 2008.
55 EPA-OIG Draft Report, EPA Does Not Provide Oversight of Radon Testing Accuracy and Reliability, April 2009.
56 EPA-OIG Report, EPA's Oversight of Vehicle Inspection and Maintenance Programs Needs Improvement, Report
No. 2007-P-00001, October 5, 2006.
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Chesapeake Bay Program
The Chesapeake Bay is North America's largest and most biologically diverse estuary.
Improving water quality is the most critical element in the overall protection and restoration of
the Chesapeake Bay and its tributaries according to the Chesapeake Bay 2000 Agreement.57 Yet
after about 20 years of effort by federal, State, and local governments, the Bay waters remain
degraded and the latest targeted clean-up goal will not be met. After a series of reports, we
determined that while EPA could increase its use of some authorities and improve oversight, this
is not nearly sufficient for achieving and sustaining water quality goals.58 EPA quite simply does
not have the resources, tools, or authorities to ensure that the Chesapeake Bay Program is
successful. Changes in national farm policy, local land development decisions, and individual
life styles could have huge impacts on the amount of pollution being discharged to the Bay.
Congress designated EPA's Chesapeake Bay Program Office (CBPO) with the responsibility to
coordinate clean-up efforts with other federal agencies and State and local governments.59 The
CBPO was also given the responsibility to report to Congress on the progress in cleaning up the
Bay. Congress provides a much higher level of funding to CBPO than it does for any other
geographically-based program. The 2009 budget requests $29 million for CBPO.60 With this
money, the CBPO awards grants and offers various technical information and assistance.
Congress' interest in the Bay is also exhibited in its proposed funding of projects in the Farm
Bill.61
As the most mature watershed restoration program, successful approaches and solutions for
organizing and managing clean-up will be highly relevant to stakeholders in other watersheds.
Success or failure will resonate in communities across the country. The Bay's problems are
national problems. The CBPO can be the prototype for developing ways to address water quality
impairments of other watersheds. The most important water quality issues (nutrient overloading,
habitat loss, and decline in fish populations) faced by the Bay are the same issues the other 28
estuaries in EPA's National Estuary Program face.62
EPA's CBPO has provided scientific information used by the partnership in setting allocations,
revising water quality standards, and establishing stricter wastewater treatment discharge limits.
Despite these important accomplishments, Bay partners face significant obstacles in achieving
the Bay's water quality goals. It is now widely acknowledged that the nutrient and sediment
reductions that are required will not be met by 2010 as planned. EPA did not meet its strategic
57 Chesapeake Bay Program, Chesapeake 2000, page 1 ("chesapeakebay.net" Website).
58 EPA-OIG Reports, Saving the Chesapeake Bay Watershed Requires Better Coordination of Environmental and
Agricultural Resources, Report No. 2007-P-00004; EPA Relying on Existing Clean Air Act Regulations to Reduce
Atmospheric Deposition to the Chesapeake Bay and its Watershed, Report No. 2007-P-00009; Development Growth
Outpacing Progress in Watershed Efforts to Restore the Chesapeake Bay, Report No. 2007-P-00031; Despite
Progress, EPA Needs to Improve Oversight of Wastewater Upgrades in the Chesapeake Bay Watershed, Report No.
08-P-0049; and EPA Needs to Better Report Chesapeake Bay Challenges, Report No. 08-P-0199.
59 Clean Water Act §117.
60 US EPA, Office of the Chief Financial Officer, FY 2009 EPA Budget in Brief, page D-4.
61 US Department of Agriculture, 2007 Farm Bill Proposals.
62 US EPA, Office of Water, "Wetlands, Oceans, & Watersheds" website, Challenges Facing Our Estuaries, Key
Management Issues.
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plan goals for the Chesapeake Bay in 2005 and 2006.63 Of the five strategic goals in 2007 and
2008, two were met and three were not. At the current rate of progress, it will take decades for
Bay partners to reach their reduction goals, and that is without factoring in future challenges.
The Bay partners face the following key challenges: (1) managing land development, (2)
increasing implementation of agricultural conservation practices, (3) monitoring and expediting
the installation of nutrient removal technology at wastewater treatment plants, (4) seeking greater
reductions in air emissions, and (5) identifying consistent and sustained funding sources to
support tributary strategy implementation. Few of these steps can be taken by EPA; its
"partners" will need to implement practices to reduce loads. However, EPA will need to institute
management controls to ensure that promised reductions are realistic, and those that are claimed
are actually being achieved.
Actions necessary to address the above challenges will not be easily implemented even if such
practices are described as cost-effective. For example, it will be difficult to convince enough
agricultural producers that conservation practices will not adversely affect productivity. And in
many cases, EPA has no clear authority to control major sources of pollution, such as from land
development. Other practices are controversial because they place restrictions on lives of the
residents of the Bay watershed. Controls may result in property owners near the coast not being
able to construct additions to their homes or develop vacant land. However, to address these
challenges, EPA and its partners will need to make major program improvements. In the
absence of significant steps from government, financial incentives or other mechanisms of
influence, the enormous reductions required will not be forthcoming.
In response to OIG and GAO reports, the CBPO developed the Chesapeake Action Plan to
improve program management and strategic planning. While the Plan will likely improve
overall management, it is unlikely to result in the accelerated progress needed to achieve
reduction goals. It will still be up to local governments to determine how they will develop lands
and to other federal agencies on how they will direct agricultural production or transportation.
The Bay community is responsible for taking action to ensure that Bay-wide commitments are
met, and that water quality goals are achieved and maintained. It is EPA's responsibility to
monitor and assess progress. Bay partners need to commit to implementation plans with realistic
timeframes and generate adequate financial support. Obtaining adequate financial support will
become more difficult with the current economy. EPA should use its reporting responsibilities to
advise Congress and the Chesapeake Bay community on partners' progress in meeting
commitments and identifying any funding shortfalls and other impediments that will affect
progress for restoring the Bay.
63 US EPA, Office of the Chief Financial Officer, 2006 Performance and Accountability Report, page 176.
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Voluntary Programs
Data verification problems are a recurring theme in voluntary programs. This shortcoming has
been especially acute in the Agency's programs to reduce air emissions, including greenhouse
gases (GHG). Over the last several years, we have reviewed a number of these programs. In
general, these reports determined that EPA voluntary programs have difficulty verifying their
outcomes. We found that EPA had no Agency-wide policies that require voluntary programs to
collect comparable data or conduct regular program evaluations. We also found that several
programs showed weaknesses in their data collection and reporting systems. These problems
were caused by the collection and use of limited, unverified, and anonymous performance data.
Further, we found the ENERGY STAR program (EPA's highest profile GHG avoidance
program) reported benefits that were inaccurate and unsupported. GHG emission reductions
have been deemed a priority, but the numerous voluntary programs established to reduce GHG
emissions have only limited potential. In our review of 11 prominent voluntary programs we
found that, on average, they had the potential of reducing only 19 percent of total GHG
emissions.
We documented similar performance and data verification limitations in Agency voluntary
programs that address air toxics, ports, and nanoscale materials. States receive grant money to
collect air toxics data, but only 37 have delivered the data requested. Key voluntary strategies
are used to reduce diesel emissions from port sources. However, these initiatives have suffered
from low participation rates, lack of funding, and emissions data. Low participation rates have
also hindered EPA's ability to achieve greater results in its Nanoscale Materials Stewardship
Program (NMSP). We also observed that the Pollution Prevention Program's verification and
validation procedures did not ensure the accuracy of performance data obtained from voluntary
partners, so program managers had no assurance that performance results data obtained from
voluntary partnerships with industry and other organizations were accurate.
Some of EPA's voluntary programs are not achieving the air quality goals they were created to
achieve. For example, since 1988 when the Indoor Radon Abatement Act was enacted with the
goal that indoor air should be as free of radon as outdoor air, EPA has administered a voluntary
program to reduce indoor radon.64 However, inconsistencies in radon-related requirements
among State and local governments, a lack of incentives, funding constraints, and misuse of the
radon map limit EPA's ability to achieve greater results with this voluntary program. The
problem of radon exposure actually worsens each year. To date, EPA has neither proposed any
indoor radon regulations, nor decided how to use the authorities and tools available to it to
achieve Indoor Radon Abatement Act goals. EPA did not agree with our recommendation to
notify Congress of any limitations in the Act's authorities authorized by Congress, as well as
other limitations that would preclude EPA from achieving the long-term goal of the Act.
EPA is also relying on voluntary programs to help reduce air emissions at U.S. ports, but the
Agency has not successfully implemented key elements of these voluntary programs at many
64 EPA-OIG Report, More Action Needed to Protect Public from Indoor Radon Risks, Report No. 08-P-0174, June
3, 2008.
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ports.65 One of the key voluntary strategies for reducing diesel emissions from port sources
relies on participation in regional diesel collaboratives. However, many seaports located in
nonattainment areas for either ozone, particulate matter, or both were not participating in these
voluntary collaboratives. To address the low participation rate, EPA needs to proactively target
and motivate port stakeholders to participate in the regional diesel collaboratives, particularly for
those ports located in nonattainment areas. The lack of funding and emissions data has also
hampered EPA's implementation of port voluntary programs.
Low participation rates have also hindered EPA's ability to achieve greater results in its NMSP.
EPA implemented this voluntary program to complement and support regulatory efforts on
nanoscale materials under the Toxic Substances Control Act.66 NMSP is intended to help
provide a stronger scientific foundation for future regulatory decisions by encouraging the
submission and development of information for nanoscale materials (e.g., chemical identification
and physical properties characterization, hazard, use, potential exposures, and risk management
practices).67 Under the NMSP Basic Program, participants were invited to voluntarily submit
available information by July 29, 2008, on the engineered nanoscale materials they manufacture,
import, process, or use.68 Under the In-Depth Program, participants were invited to work with
EPA and others on developing data over a longer timeframe. As of December 8, 2008,
29 companies or associations submitted information under the Basic Program and 4 companies
had agreed to participate in the In-Depth Program. As a result of the low participation, nearly
two-thirds of the chemical substances for which commercially available nanoscale materials are
based were not reported under the Basic Program, and approximately 90 percent of the nanoscale
materials likely to be commercialized were not reported under the Basic Program. Further, low
rates of engagement in the In-Depth Program suggest that most companies are not inclined to
voluntarily test their nanoscale materials.
Voluntary programs can be an adjunct to regulatory programs. However, their effectiveness and
impacts cannot be assessed without the collection of comprehensive, valid, and reliable
performance data. In light of these systemic findings, EPA should determine the extent to which
voluntary programs can effectively address its pressing environmental and human health
challenges.
65 EPA-OIG Report, EPA Needs to Improve Its Efforts to Reduce Air Emissions at U.S. Ports, Report No. 09-P-
0125, March 23, 2009.
66 US EPA, Nanoscale Materials Stewardship Program: Interim Report, OPPT, January 2009.
67 US EPA, Nanoscale Materials Stewardship Program, Federal Register, Vol. 73, No. 18, January 28, 2008.
68 US EPA, Nanoscale Materials Stewardship Program: Interim Report, OPPT, January 2009.
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Safe Reuse of Contaminated Sites
In the last decade, EPA has placed increasing emphasis on the reuse of contaminated or once-
contaminated properties. Today, EPA has a performance measure to define a population of
contaminated sites that are "ready for reuse,"69 and recently released a list of thousands of
contaminated sites marketed as candidates for building renewable energy facilities (e.g., wind,
solar, biomass facilities)70 EPA has had some highly successful efforts in returning actual or
perceived problem sites into properties that reinvigorated communities and created jobs.71
Contaminated properties have been put back into reuse as retail stores, public recreation areas,
housing complexes, sports stadiums, and commercial office space.
EPA's goal to recycle and reuse contaminated property can produce measured economic
benefits, environmental benefits that result from preserving undeveloped lands, and quality of
life improvements for communities. While these goals are notable, EPA's duty is to ensure that
contaminated sites are safe for humans and the environment. EPA faces significant and
increasing challenges in this area due to the common practice of not removing all sources of
contamination from hazardous sites; a regulatory structure that places key responsibilities for
monitoring and enforcing the long-term safety of contaminated sites on non-EPA parties that
may lack necessary resources, information, and skill; changes in site risks as site conditions
change over time; and existing weaknesses in EPA's oversight of the long-term safety of sites.
Many contaminated sites, such as Superfund sites, must be monitored in the long-term (i.e.,
30 years or more) because known contamination is often not removed or remediated and controls
that prevent prohibited activities at sites must be maintained and enforced. New controls or
monitoring may be required because previously undetected or new contaminants have emerged.72
This can happen directly as a result of a change in the site brought about by reuse. The lack of
effective long-term monitoring and enforcement of reuse controls at contaminated sites can pose
significant risks to human health and the environment. The New York Department of
Environmental Conservation released a report in March 2009 listing hundreds of "old"
Superfund, Brownfields, and other clean-up cases that were reopened to investigate potential
new threats from vapor intrusion 73
EPA has acknowledged challenges to ensuring the long-term safety of contaminated sites.74 In
2005, the Agency released a report that examined a range of long-term stewardship issues75 and
69 US EPA, Guidance for Documenting and Reporting the Superfund Sitewide Ready-for-Reuse Performance
Measure, Attachment A, OSWER 9365.0 - 36.
70 US EPA, RE-Powering America's Land: Renewable Energy on Contaminated Land and Mining Sites.
71 US EPA, "Superfund Redevelopment" Website.
72 US EPA, Brownfields Technology Primer: Vapor Lntrusion Considerations for Redevelopment, EPA 542-R-08-
001, March 2008.
73 New York State Department of Environmental Conservation, Status of Vapor Lntrusion Evaluations at Legacy
Sites, February 11, 2009; and Strategy for Evaluating Soil Vapor Lntrusion at Remedial Sites in New York, DER-13,
October 18, 2006.
74 US EPA Long-Term Stewardship: Ensuring Environmental Site Cleanups Remain Protective Over Time:
Challenges and Opportunities Facing EPA's Cleanup Programs, EPA 500-R-05-001, September 2005.
75 EPA generally characterizes long-term stewardship activities as activities that ensure (1) ongoing protection of
human health and the environment; (2) the integrity of remedial or corrective actions so they continue to operate
properly, and (3) the ability of people to reuse sites in a safe and protective manner.
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challenges it faced, as well as non-EPA parties (i.e., States, tribes, and other federal agencies)
that have a role in ensuring long-term safety of contaminated sites. The Agency identified five
categories of challenges: (1) understanding roles and responsibilities; (2) implementing and
enforcing institutional controls;76 (3) implementing, enforcing, and monitoring engineering
controls;77 (4) estimating long-term stewardship costs and obtaining funding and resources; and
(5) managing and communicating information to prevent breaches of controls and ensuring
consistent information in databases. The report made a number of recommendations which
generally rely on partnerships and relationships to share, communicate, and exchange necessary
information on roles, responsibilities, and costs associated with long-term stewardship
responsibilities, and to encourage non-EPA parties to adhere to legal provisions for
implementing institutional controls, where applicable (i.e., Uniform Environmental Covenants
Act78). In response to reported GAO concerns in this area, EPA has also taken some steps to
better manage the implementation of institutional controls at Superfund sites.79 However, there
remain many sites where the implementation status of institutional controls is not available.80
Our work has identified a number of challenges that EPA faces in ensuring effective long-term
monitoring, or stewardship of contaminated sites. We found that some States were not
financially prepared to take over their long-term monitoring and maintenance responsibilities for
Superfund sites.81 We reported State failures to enforce clean up agreements,82 EPA not
following Superfund site deletion guidance,83 five-year review procedures,84 and not having
systems in place to determine whether a site clean-up is in noncompliance.85
It has only been in the last several years that EPA has focused attention on the long-term
stewardship aspects of contaminated sites across its clean-up programs. EPA's management of
the long-term oversight and monitoring requirements for the safe reuse of contaminated sites has
76 Institutional controls are legal or administrative controls intended to minimize the potential for human exposure to
contamination by limiting land or resource use. A local government is often the only entity that has legal authority
to implement certain types of institutional controls (e.g., zoning restrictions).
77 Engineering controls are the engineered physical barriers or structures designed to monitor and prevent or limit
exposure to the contamination.
78 The Uniform Environmental Covenants Act confirms the validity of environmental covenants (i.e., institutional
controls/land use controls) by ensuring that land use restrictions, mandated environmental monitoring requirements,
and a wide range of common engineering controls designed to control the potential environmental risk of residual
contamination will be reflected in land records and effectively enforced over time. Currently, about one half of
U.S. States have passed a Uniform Environmental Covenants Act.
79 GAO Report, Hazardous Waste Sites: Improved Effectiveness of Controls at Sites Could Better Protect the Public,
GAO-05-163 January 28, 2005. See also US EPA, Superfund Website on institutional controls.
80 See US EPA, "Superfund Information Systems" Website, Published Institutional Control Site Reports for All
Regions.
81 EPA-OIG Report, Some States Cannot Address Assessment Needs and Face Limitations in Meeting Future
Superfund Cleanup Requirements, Report No. 2004-P-00027, September 2004.
82 EPA-OIG Report, Improved Controls Would Reduce Superfund Backlogs, Report No. 08-P-0169, June 2008.
83 EPA-OIG Report, EPA Decisions to Delete Superfund Sites Should Undergo Quality Assurance Review, Report
No. 08-P-0235, August 2008.
84 EPA-OIG Report, EPA Has Improved Five-Year Review Process for Superfund Remedies, But Further Steps
Needed, Report No. 2007-P-00006 December 2006; EPA-OIG Report, EPA's Safety Determination for Delatte
Metals Superfund Site Was Unsupported, Report No. 09-P-0029, November 2008.
85 EPA-OIG Report, EPA Needs to Track Compliance with Superfund Cleanup Requirements, Report No. 08-P-
0141, April 2008.
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lagged behind their marketing of site reuse opportunities and showcase successes. This gap
promises to increase substantially as EPA continues to heavily promote the reuse of
contaminated sites without investment in the tools needed to ensure the safe, long-term use of
these sites. Many Superfund sites are now moving to the long-term monitoring phase with more
sites expected in the future.86 EPA's December 2008 report on future Superfund workload needs
states that the post-construction workload will require the greatest increase in coming years and
will increase by 89 percent over the current full-time equivalent distribution.87 EPA will
continually need to assess challenges it faces as well as challenges among the diverse group of
non-EPA parties it must work with to ensure sites are safely reused. To address the challenges,
these assessments should include consideration of new or expanded authorities and regulations,
organizational structures, and dedicated funding and resources.
86 US EPA, Long-Term Stewardship: Ensuring Environmental Site Cleanups Remain Protective Over Time:
Challenges and Opportunities Facing EPA's Cleanup Programs, EPA 500-R-05-001, September 2005.
87 US EPA, Superfund Workload Assessment Report, OSWER Document 9200-2-81, December 2, 2008. Post-
construction workload can refer to all activities after the remedy is constructed. This includes long-term monitoring
and reuse activities.
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