State Review Framework

New Hampshire

Clean Air Act and
Resource Conservation and Recovery Act (FFY 2019)

Implementation
in Federal Fiscal Year 2020

U.S. Environmental Protection Agency
Region 1, Boston

Draft Report
September 8,2022

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Executive Summary

Introduction

EPA Region 1 enforcement staff conducted a State Review Framework (SRF) compliance and
enforcement program oversight review of the New Hampshire Department of Environmental
Services (NHDES.)

EPA bases SRF findings on data and file review metrics, and conversations with program
management and staff. EPA will track recommended actions from the review in the SRF Tracker
and publish reports and recommendations on EPA's ECHO web site.

Areas of Strong Performance

•	NHDES does an excellent job of entering minimum data reporting requirements (MDRs)
into ICIS-Air and RCRAInfo in a timely manner.

•	NHDES does an excellent job of entering complete and accurate MDRs into ICIS-Air
and RCRAInfo.

•	NHDES has taken advantage of CMS flexibilities in the CAA program, with regards to
the Covid-19 pandemic, and did an excellent job ensuring inspection coverage at all CMS
sources.

•	NHDES inspectors write very comprehensive and thorough inspection reports covering
both state and federal regulations.

•	NHDES does an excellent job identifying violations through inspections/report and
record reviews/stack tests and permit renewal application reviews for federally reportable
violators/high priority violators (FRVs/HPVs) in the CAA program and Significant Non-
Compliers (SNCs) in the RCRA Program and takes timely and appropriate enforcement
actions to address the violations identified.

•	NHDES does an excellent job of including, in its informal and/or formal enforcement
actions, corrective actions needed for a source to return to compliance, and in many
cases, a source has returned to compliance prior to any enforcement being taken due to
the implementation of an "early warning notice" program.

•	NHDES does an excellent job of assessing penalties and documenting the collection of
penalties for the formal enforcement actions it takes. The penalties associated with
formal enforcement actions taken include gravity and economic benefit, where
appropriate.

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Table of Contents

I.	Background on the State Review Framework

II.	SRF Review Process

III.	SRF Findings

Clean Air Act Findings

Resource Conservation and Recovery Act Findings
Appendix

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I. Background on the State Review Framework

The State Review Framework (SRF) is designed to ensure that EPA conducts nationally
consistent oversight. It reviews the following local, state, and EPA compliance and enforcement
programs:

•	Clean Air Act Stationary Sources (Title V)

•	Resource Conservation and Recovery Act Subtitle C

Reviews cover:

•	Data - completeness, accuracy, and timeliness of data entry into national data systems

•	Inspections - meeting inspection and coverage commitments, inspection report quality,
and report timeliness

•	Violations - identification of violations, determination of significant noncompliance
(SNC) for the RCRA program and high priority violators (HPV) for the CAA program,
and accuracy of compliance determinations

•	Enforcement - timeliness and appropriateness, returning facilities to compliance

•	Penalties - calculation including gravity and economic benefit components, assessment,
and collection

EPA conducts SRF reviews in three phases:

•	Analyzing information from the national data systems in the form of data metrics

•	Reviewing facility files and compiling file metrics

•	Development of findings and recommendations

EPA builds consultation into the SRF to ensure that EPA and the state understand the causes of
issues and agree, to the degree possible, on actions needed to address them. SRF reports capture
the agreements developed during the review process in order to facilitate program improvements.
EPA also uses the information in the reports to develop a better understanding of enforcement
and compliance nationwide, and to identify issues that require a national response.

Reports provide factual information. They do not include determinations of overall program
adequacy, nor are they used to compare or rank state programs.

Each state's programs are reviewed once every five years. The first round of SRF reviews began
in FY 2004. The fourth round of reviews began in FY 2018 and will continue through FY 2023.

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II. SRF Review Process

Review period: 2020

Key dates: File Reviews -Air:

June 6 -9, 2022

File Reviews - RCRA:

May 15-16, 25, 2022

State and EPA key contacts for review:

Clean Air Act

Tom McCusker, EPA Air, (617) 918-1862
McCusker.Tom@epa.gov

Sheri Eldridge, NHDES Air, (603) 271-0882
Sheri.R.Eldridge@des.nh.gov

Resource Conservation and Recovery Act

Linda Brolin, EPA RCRA, (617) 918-1876
Brolin.Linda@epa.gov

Tammy Calligandes, NHDES RCRA (603)-271-7513
T ammy.A.Calligandes@des.nh.gov

Tod Leedberg, NHDES RCRA (603)271-2946
Tod.G.Leedberg@des.nh.gov

State Review Framework (EPA Region I Management)

James Chow, EPA, (617) 918-1394
Chow.James@epa.gov

Denny Dart, EPA, (617) 918-1850
Dart.Denny@epa.gov

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III. SRF Findings

Findings represent EPA's conclusions regarding state performance and are based on findings
made during the data and/or file reviews and may also be informed by:

•	Annual data metric reviews conducted since the state's last SRF review

•	Follow-up conversations with state agency personnel

•	Review of previous SRF reports, Memoranda of Agreement, or other data sources

•	Additional information collected to determine an issue's severity and root causes

There are three categories of findings:

Meets or Exceeds Expectations: The SRF was established to define a base level or floor for
enforcement program performance. This rating describes a situation where the base level is met
and no performance deficiency is identified, or a state performs above national program
expectations.

Area for State Attention: An activity, process, or policy that one or more SRF metrics show as
a minor problem. Where appropriate, the state should correct the issue without additional EPA
oversight. EPA may make recommendations to improve performance, but it will not monitor
these recommendations for completion between SRF reviews. These areas are not highlighted as
significant in an executive summary.

Area for State Improvement: An activity, process, or policy that one or more SRF metrics
show as a significant problem that the agency is required to address. Recommendations should
address root causes. These recommendations must have well-defined timelines and milestones
for completion, and EPA will monitor them for completion between SRF reviews in the SRF
Tracker.

Whenever a metric indicates a major performance issue, EPA will write up a finding of Area for
State Improvement, regardless of other metric values pertaining to a particular element.

The relevant SRF metrics are listed within each finding. The following information is provided
for each metric:

•	Metric ID Number and Description: The metric's SRF identification number and a
description of what the metric measures.

•	Natl Goal: The national goal, if applicable, of the metric, or the CMS commitment that
the state has made.

•	Natl Avg: The national average across all states, territories, and the District of Columbia.

•	State N: For metrics expressed as percentages, the numerator.

•	State D: The denominator.

•	State % or #: The percentage, or if the metric is expressed as a whole number, the count.

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Appendix

[The following information has been furnished by NHDES.]

NHDES

General Program Overview

NHDES is committed to a consistent, predictable and appropriate compliance assurance
program, which is protective of public health and the environment while creating a credible
deterrent against future violations. NHDES believes that compliance with environmental laws is
best ensured by using a multi-tiered, multi-media approach that includes education and outreach,
compliance assistance, compliance monitoring, and where appropriate, formal enforcement.
Compliance and going beyond compliance are our fundamental goals. NHDES will endeavor to
create incentives for compliance and will encourage the regulated community to surpass the
minimum requirements of compliance through pollution prevention and innovative technologies.

NHDES seeks to prevent violations of environmental laws and the associated impacts on the
environment and public health through education and outreach. When violations occur, NHDES
encourages early identification and correction of environmental violations in order to minimize
impacts to public health and the environment. NHDES encourages regulated entities to self-
report violations to DES, especially if compliance legitimately will take time to achieve. If
violations are observed or reported by other than the regulated entity, NHDES ordinarily will
notify the responsible party as soon as possible after NHDES becomes aware of the violations.
As appropriate, NHDES will offer or recommend assistance to correct violations even while
formal enforcement action may concurrently be in development to address them. Where DES
identifies trends or patterns of noncompliance, NHDES will investigate root causes and take
action as appropriate.

Violators will be held responsible for repairing any environmental damage that they have caused.
If remediation is not feasible, NHDES will require the violator to provide or undertake other
compensatory measures. NHDES will focus its enforcement efforts to ensure the most positive
impact.

Through its outreach and assistance activities, NHDES will encourage greater awareness of the
requirements of environmental laws and promote environmental stewardship. Through its
compliance actions, NHDES will encourage the regulated community to implement innovative
alternatives that provide additional environmental benefits. Through its penalty actions, NHDES
will strive to eliminate unfair competitive advantage or other economic benefit gained from the
avoidance of environmental requirements. Penalties also will reflect the seriousness of the
violation and its impact on the environment and public health.

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CAA Element 1 - Data

Clean Air Act Findings

Finding 1-1

Meets or Exceeds Expectations

Summary:

Both the File Review Metrics and the Data Metric Analysis (DMA) metrics indicate that NHDES
does an excellent job of entering required data into ICIS-Air in a timely fashion.

Explanation:

A review of Metric 3a2 of the DMA indicates that NHDES had one newly-identified HPV in FFY
2020, which was entered into ICIS-Air by NHDES in a timely manner (within 60 days of being
identified as an HPV).

A review of Metric 3b 1 of the DMA indicates that 2 out of 72 compliance monitoring activities
(2.8%) were entered into ICIS-Air in an untimely manner (after 60 days of the activity). A total
of 1 FCE and 1 annual compliance certification review were reported as being entered late.

A review of Metric 3b2 of the DMA indicates that 2 out of 57 stack tests (3.5%) were reported
into ICIS-Air in an untimely manner (after 120 days of the activity).

A review of Metric 3b3 of the DMA indicates that NHDES entered all 11 enforcement-related
minimum data requirements (MDRs) into ICIS-Air in a timely manner (100%).

A review of the DMA for Metric 3a2, 3b 1, 3b2, and 3b3 indicates that NHDES well exceeded
the national average for these metrics. As a result, a "Finding Level" of "Meets or Exceeds
Expectations" is appropriate.

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Relevant metrics:

Metric ID Number and Description

Natl
Goal

Natl

Avg

State

N

State
D

State

%

3a2 Timely reporting of HPV determinations
[GOAL]

100%

40.6%

1

1

100%

3b 1 Timely reporting of compliance monitoring
MDRs [GOAL]

100%

74.3%

70

72

97.2%

3b2 Timely reporting of stack test dates and results
[GOAL]

100%

59.4%

55

57

96.5%

3b3 Timely reporting of enforcement MDRs
[GOAL]

100%

76.3%

11

11

100%

State Response: It is the NHDES' goal to complete all required reporting of compliance
monitoring data to ICIS-Air in a timely manner. NHDES will continue to review data on a
quarterly basis and ensure proper reporting to ICIS-Air.

Recommendation:

Uec Due	„	. .

Recommendation

# Date

None

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CAA Element 1 - Data

Finding 1-2

Meets or Exceeds Expectations

Summary:

The applicable File Review Metrics, DMA metrics, and Data Verification Metrics (DVM)
indicate thatNHDES has done an excellent job regarding the completeness and accuracy of data
entered into ICIS-Air.

Explanation:

A comparison of Metric lhl of the DVM (Total Amount of Assessed Penalties) for FFY 2020
and FFY 2021 (for applicable files reviewed for continuity purposes) with the NHDES
information found in its files for this metric for FFY 2020 and FFY 2021 reveals that NHDES
accurately reported to ICIS-Air the assessed penalties from all 5 files reviewed that contained
formal enforcement with penalties.

A review of Metric 5e of the DMA (Reviews of Title V Annual Compliance Certifications
Completed) indicates that NHDES conducted annual compliance certification reviews at 32 out
of 32 sources (100%) where Title V annual compliance certifications were due in FFY 2020 and
accurately reported this data into ICIS-Air. NHDES well exceeded the national average in this
area and met the 100% goal.

A comparison of Metric 7al (FRV Discovery Rate Based on Evaluations of Active CMS
Sources), for FFY 2020, with the files reviewed where federally-reportable violations (FRVs)
should have been identified in FFY 2020, indicates that NHDES reported to ICIS-Air 7 out of 8
FRVs for FFY 2020 (one FRV was not identified as such and therefore not reported to ICIS-Air).
In addition, for the 3 files reviewed that contained FRVs identified in FFYs 2018, 2019 and 2021
(1 FRV for each of these off years that were reviewed for other reasons for continuity purposes)
and comparing the file information with Metric 7al, for the appropriate years, indicates that
NHDES reported to ICIS-Air these 3 FRVs, as required by EPA policy.

A review of Metric 8a of the DMA (Discovery Rate of HPVs at Major Sources) indicates that
NHDES identified 1 HPV in FFY 2020. EPA's file review did not identify any additional HPVs
that should have been reported to ICIS-Air (the files reviewed did include 3 additional HPVs, one
for each of years 2015, 2018 and 2021, which were reviewed for continuity purposes, that were
identified as HPVs by NHDES in the appropriate years).

Based on the file reviews, the following data completeness issues were found: the date 1 full
compliance evaluation (FCE) was conducted, based on the file review, did not match the date
reported in ICIS-Air (the date reported in ICIS-Air was the date the final report was sent to the
facility, which was 7 days after the FCE was conducted); and, the review date for 1 annual
compliance certification did not match between ICIS-Air and the file reviewed (NHDES believes
the accurate date for this review was initially entered in ICIS-Air, but the date was overwritten
months later when an intern was in the file entering additional data).

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In total, the information contained in 27 files out of the 30 files reviewed were accurately reflected
in ICIS-Air (90.0%).

Based on the above, a "Finding Level" of "Meets or Exceeds Expectations" is appropriate.
Relevant metrics:

i% i ± * ¦ r\ xt ¦	Natl	Natl State State State

Metric ID Number and Description	,, .	. .. _ ...

1	Goal	Avg N D %

2b Files reviewed where data are accurately reflected	| inn0/	I | | | n0/

• 1 • 11 ro /~\ Axn	lUU/O 1	| ^ / | 30 I yU.U/0
in the national data system [GOAL]

State Response: It is NHDES' goal to ensure that its data is accurately reflected in ICIS-Air.
NHDES will perform quarterly reviews of uploaded data and assess its upload protocols to
ensure proper reporting of data. NHDES staff will review applicable EPA policies to ensure that
FRVs are properly identified.

Uec Due	„	. .

„ ,	Recommendation

# Date

None.

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CAA Element 2 - Inspections

Finding 2-1

Meets or Exceeds Expectations

Summary:

NHDES met all of its CMS Plan FCE commitments (this included 3 Title V major source offsite
partial compliance evaluations (Off-site PCEs) that were allowed to replace the required FCEs
under the Amendment to NHDES's FFY2020 CMS Plan due to COVID-19. ICIS-Air is not
designed to capture the nuance of these flexibilities, so the DMA is under-counting by 3 the total
number of major source FCEs conducted in FFY 2020. In addition, EPA granted approval for
one Title V major source FCE to be pushed back to FFY 2021. This FCE was conducted in
2021. NHDES well exceeded the national average in this area and met the 100% goal,
considering the impacts of COVID-19.

As previously discussed above, in Finding 1-2 of this report, a review of Metric 5e of the DMA
(Reviews of Title V Annual Compliance Certifications Completed) indicates that NHDES
conducted annual compliance certification reviews for all 32 (100%) of the Title V major sources
where annual compliance certifications were due in FFY 2020. NHDES well exceeded the
national average in this area and met the 100% goal.

Explanation:

A review of Metric 5a of the DMA (FCE Coverage at Majors and Mega-Sites) indicates that
NHDES conducted FCEs at 11 out of 15 Mega-site/Title V major sources required to be
inspected with an FCE in FFY 2020. Upon further review, EPA found that 3 of the missing
FCEs at major sources were replaced by Off-site PCEs. These Offsite PCEs were allowed to
replace the required FCEs under the Amendment to NHDES's FFY2020 CMS Plan due to
COVID-19. The amended CMS Plan was approved in writing by EPA. ICIS-Air is not designed
to capture the nuance of these flexibilities such that it appears as a discrepancy in the data
metrics. Regarding the remaining major source FCE not conducted in FFY 2020, EPA granted
NHDES permission to push back this FCE until FFY 2021, via NHDES's amended CMS Plan.
NHDES conducted this remaining FCE on August 26, 2021.

A review of Metric 5b of the DMA (FCE Coverage at SM-80s) indicates that NHDES conducted
all required FCEs at 26 out of 26 SM-80 sources required to be inspected with an FCE in FFY
2020.

A review of Metric 5e of the DMA (Reviews of Title V Annual Compliance Certifications
Completed) indicates that NHDES conducted reviews of 32 out of 32 annual compliance
certifications due in FFY 2020.

Based on the above, a "Finding Level" of "Meets or Exceeds Expectations" is appropriate.-

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Relevant metrics:

Metric ID Number and Description

5a FCE coverage: majors and mega-sites [GOAL]

Natl Natl State State State
Goal Avg N D %

100% I 85.7%

5b FCE coverage: SM-80s [GOAL]

100%

93.6%

26

26

100%

5c FCE coverage: minors and synthetic minors (non-
SM 80s) that are part of CMS plan or alternative
CMS Plan [GOAL]

100%

55.3%

0

0

NA

5d FCE coverage: minor facilities that are part of
CMS plan. [GOAL]





0

0

NA

5e Reviews of Title V annual compliance
certifications completed [GOAL]

100%

82.8%

32

32

100%

14 1 14 I 100%

State Response: It is NHDES' goal to complete all inspections in a timely manner and to
complete reviews of all Title V annual compliance certifications. NHDES is committed to
working with EPA to find appropriate alternatives when necessary to ensure that the goal is met.

Recommendation:

Uec Due
# Date

I

None.

Recommendation

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CAA Element 2 - Inspections

Finding 2-2

Meets or Exceeds Expectations

Summary:

NHDES inspectors did an excellent job writing comprehensive compliance monitoring reports
(CMRs) for the FCEs conducted. The CMRs were very detailed and included a template that listed
all applicable equipment and all applicable state and federal air regulations that applied to each
piece of equipment maintained by a facility. The use of the inspection template is an enhancement
to the already well-written narrative report that helps ensure that the inspectors are making full and
complete compliance determinations for all applicable state and federal regulations that apply to
each piece of equipment maintained by a facility.

Based on the file review, only 1 out of 22 files that contained a CMR for an FCE was found to be
incomplete. In this case, NHDES inspectors did not provide an applicability and compliance
discussion for a small emergency fire pump engine.

Explanation:

Of the 30 files reviewed, 22 contained CMR reports for FCEs. For 7 out of the 8 remaining files,
the files contained informal and/or formal enforcement actions that were based on source self-
disclosures or other information where there were no associated CMRs. For the 1 remaining file
reviewed, a drive-by FCE was done to confirm that a facility had permanently shut down, which
it had, so no formal CMR report was written.

A total of 21 out of 22 CMR reports reviewed (95.5%) were comprehensive and very well written.
These 21 CMRs included detailed information that documented accurate compliance
determinations for all state and federal regulations that applied to each piece of equipment
maintained by each facility. For the remaining file, the CMR was also well written and
comprehensive, with the exception of overlooking one small emergency fire pump engine such
that the applicability of the engine to either the federal National Emission Standards for Hazardous
Air Pollutants for stationary reciprocating internal combustion engines (RICE NESHAP) or the
New Source Performance Standards for stationary, compression ignition, internal combustion
engines (CI NSPS) could not be ascertained and compliance determinations were not made with
regards to applicable recordkeeping and work practice requirements that would have been required
by either of the above standards.

NHDES sends each of its final inspection reports to the applicable facility inspected. The final
report is typically sent to the source the same day that the report is finalized. This serves as an
"early warning notice" to facilities when violations are found. In the past, this "early warning
notice" resulted in a finding of "Good Practice". In 6 of the 14 files reviewed where enforcement
was taken, the violation(s) was/were already resolved prior to issuing any informal or formal
enforcement action. NHDES should be commended for this practice.

Of the 22 files where CMRs were reviewed for FCEs, 21 of the CMR reports were finalized and
sent to the applicable facility inspected within 30 days of the FCE date. The remaining CMR was

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finalized and sent to the state 62 days after the FCE date. EPA has a policy that inspection reports
should be completed within 60 days of conducting an FCE or PCE. EPA Region I's Air Compliance
Section has had a 30-day policy in effect for several years.

Based on the file review, a "Finding Level" of "Meets or Exceeds Expectations" is appropriate.

Relevant metrics:

Metric ID Number and Description

Natl
Goal

Natl

Avg

State

N

State
D

State

%

6a Documentation of FCE elements [GOAL]

100%



21

22

95.5% (

6b Compliance monitoring reports (CMRs) or facility
files reviewed that provide sufficient documentation to
determine compliance of the facility [GOAL]

100%



29

30

96.7% |

State Response: It is NHDES' goal to ensure that all FCE elements are documented, and
reports are completed within 30 days of the FCE. NHDES will review FCE status reports more
frequently to ensure that reports are completed in a timely manner. NHDES will ensure that
inspectors receive appropriate training and supervision to maintain a high level of thoroughness
and accuracy.

Recommendation:

Uec Due
# Date

I

None.

Recommendation

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CAA Element 3 - Violations

Finding 3-1

Meets or Exceeds Expectations

Summary:

NHDES does an excellent job of identifying and documenting violations and making accurate
compliance determinations.

For FFY 2020, NHDES identified 1 HPV that was reported to ICIS-Air in a timely manner. EPA's
file review did not identify any additional HPVs that should have been reported to ICIS-Air (the
files reviewed did include 3 additional HPVs, one for each of years 2015, 2018 and 2021, which
were reviewed for continuity purposes, that were identified as HPVs by NHDES in the appropriate
years).

Explanation:

In 14 out of the 30 files reviewed, there were actionable violations where either informal and/or
formal enforcement actions were taken. In all 14 files reviewed with actionable violations,
NHDES made accurate compliance determinations based on inspections, stack test report reviews,
permit renewal application reviews and various other types of record and report reviews. In 2 of
the remaining files reviewed, documentation found in the files indicated that very minor violations
occurred that were resolved very quickly where no enforcement action was deemed necessary.
EPA agrees that no enforcement was warranted in these 2 instances. Regarding the review of
documentation available from the remaining 14 files, EPA agrees that there were no violations to
be identified.

For the 30 files reviewed, NHDES identified and reported to ICIS-Air 4 HPVs, 1 for FFY 2020,
and one each for FFYs 2015, 2018 and 2021, which were reviewed for continuity purposes.

For the 30 files reviewed, NHDES identified 7 FRVs. EPA believes 1 additional FRV should have
been identified for FFY 2020 regarding an SM80 source with violations of the Area Source Boiler
NESHAP standard. There were 3 additional files reviewed where NHDES accurately identified
FRVs, one each for FFYs 2018, 2019 and 2021, which were reviewed for continuity purposes.

A review of support Metric 7al related to the discovery rate of federally-reportable violators
(FRVs) based on inspections at active CMS sources indicates that NHDES was slightly below the
national average for this metric.

Based on the above, a "Finding Level" of "Meets or Exceeds Expectations" is appropriate.

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Relevant metrics:

Metric ID Number and Description

Natl Natl State State State
Goal Avg N D %

7a Accurate compliance determinations [GOAL]

100%



30 | 30

100%

7al FRV 'discovery rate' based on inspections at
active CMS sources



6.8%

7 | 170

4.1%

8a HPV discovery rate at majors



2.4%

1 | 28

3 o"

8c Accuracy of HPV determinations [GOAL]

100%



14

14

100%

13 Timeliness of HPV Identification [GOAL]

100%

83.8%

1

1

100%

State Response: It is NHDES' goal to ensure that FRVs and HPVs are properly identified in
accordance with applicable EPA policies. As shown in the results above, NHDES achieved that
goal. NHDES believes that the FRV and HPV discovery rates are an accurate reflection of the
fact the sources have not had violations that rise to the level of a FRV or HPV.

Due Dale	Recommendation

None.

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CAA Element 4 - Enforcement

Finding 4-1

Meets or Exceeds Expectations

Summary:

NHDES does an excellent job of taking appropriate enforcement for all FRVs identified (i.e.,
HPVs/FRVs).

Explanation:

NHDES took informal and/or formal enforcement actions against 14 out of the 30 sources selected
for a file review (3 of which were for FFY 2021). A total of 8 files reviewed included informal
enforcement actions only, 4 files included formal enforcement actions only and 2 file included
both an informal and a formal enforcement action.

For the files reviewed where actionable violations were found and informal and/or formal
enforcement actions were taken, the enforcement actions included, as necessary, corrective actions
to be taken by a facility to achieve or return to compliance. In some instances, NHDES was aware
that a violating facility had already returned to compliance prior to issuing an enforcement action,
due to its "early warning notice". In these instances, NHDES would report in its enforcement
actions that no further steps were necessary by the violating facility to address/resolve the
violations identified.

In 5 out of the 6 files reviewed where formal enforcement was taken, a penalty was assessed.
NHDES plans to assess a penalty in the remaining case as well where formal enforcement has
already been taken that restricts the use of violating equipment to periods of testing and requires
the facility to demonstrate compliance through stack testing before the equipment can be operated
commercially.

A review of NHDES's enforcement activities for FFY 2016 through FFY 2019 indicates that there
has been a decrease in enforcement, from a high of 34 enforcement actions reported to ICIS-Air
for FFY 2019 to 11 enforcement actions reported to ICIS-Air for FFY 2020. HPV identification
has remained steady over this same time frame. It should be noted that due to changes in the
national HPV Policy, the number of violations meeting the HPV criteria has decreased.

With regards to addressing HPVs within 180 days of Day 0, NHDES addressed 2 HPVs (1 from
2015 and 1 from 2018, whose files were reviewed for continuity purposes) well before Day 180
(in 1 case in 12 days after Day 0 and in 1 case the same day as Day 0) when NHDES referred the
cases to the NH DO J. For the 2 remaining files reviewed regarding HPVs, 1 HPV (from FFY
2021, whose file was reviewed for continuity purposes) was addressed in 297 days from Day 0
and 1 HPV, from FFY 2020, was addressed in 289 days from Day 0. In each of these two cases,
a proper case management plan was in place by Day 225 from Day 0, as required by EPA's policy
entitled "Timely and Appropriate Enforcement Response to High Priority Violators".

Based on the above, a "Finding Level" of "Meets or Exceeds Expectations" is appropriate.

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Relevant metrics:

Metric ID Number and Description

10a Timeliness of addressing HPVs or alternatively
having a case development and resolution timeline in
place

Natl Natl State State State

Goal ; Avg

100%

N

D

%

100%

lOal Rate of Addressing HPVs within 180 days

44.2%

50%

10b Percent of HPVs that have been addressed or
removed consistent with the HPV Policy [GOAL]

100%

100%

lObl Rate of managing HPVs without formal
enforcement action

11.8%

0%

14 HPV case development and resolution timeline in
place when required that contains required policy
elements [GOAL]

100%

100%

9a Formal enforcement responses that include
required corrective action that will return the facility
to compliance in a specified timeframe, or the facility
fixed the problem without a compliance schedule
[GOAL]

100%

100%

State Response: It is NHDES' goal to continue to properly manage FRVs and HPVs in
accordance with applicable EPA policies

Due Dale

Recommendation

None.

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CAA Element 5 - Penalties

Finding 5-1

Meets or Exceeds Expectations

Summary:

NHDES does an excellent job of assessing penalties that include both a gravity component and
an economic benefit component, where applicable.

NHDES does an excellent job of documenting in their files that penalties have been collected.

Explanation:

NHDES continues to maintain excellent penalty records in its case files. The penalty records
document both gravity and economic benefit components of the penalty calculations. When a
reduction in penalty is justified for settlement purposes, NHDES includes a description of the
penalty adjustment, as well as a justification for the adjustment in the case file. NHDES also keeps
excellent records in the case file documenting that the penalty payment has been received.

For 1 file reviewed that included an assessed penalty of $6,952.00, only $5,000 of the assessed
penalty was collected due to bankruptcy proceedings. NHDES did hire a collection agency to
collect the remainder of the penalty to no avail.

In 1 case file reviewed that contained a penalty, NHDES suspended a portion of the penalty
assessed in an Administrative Fine by Consent provided that the facility did not violate any
provision of the Administrative Fine by Consent within two years of its effective date. In another
case file reviewed, which was a judicial case, a portion of the assessed penalty was suspended by
the Court.

Based on the above, a "Finding Level" of "Meets or Exceeds Expectations" is appropriate.

New Hampshire | Page 20


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Relevant metrics:

Metric ID Number and Description

Natl
Goal

Natl

Avg

State

N

State
D

State

%

11 a Penalty calculations reviewed that document
gravity and economic benefit [GOAL]

100%



5

5

100%

12a Documentation of rationale for difference between
initial penalty calculation and final penalty [GOAL]

100%



5

5

100%

12b Penalties collected [GOAL]

100%



5

5

100%

State Response: It is NHDES' goal to continue to properly assess and collect appropriate
penalties in its enforcement actions in accordance with applicable EPA policies

Due Dale	Recommendation

None.

New Hampshire | Page 21


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Resource Conservation and Recovery Act Findings FY 19 Draft 7 31 2022

RCRA Element 1 — Data

Finding 1-1

Meets or Exceeds Expectations

Summary

NH DES does an excellent job maintaining accurate data and reporting it
in a timely manner into the national database. During the time period
reviewed (FFY2019), inspection counts, documentation of violations and
enforcement actions were accurate.

Explanation	Twenty-five files were selected and reviewed to determine the

completeness of the minimum data requirements. All of the selected files
were accurately represented in the national database.

Relevant metrics

Metric ID Number and Description

Natl Natl
Goal Avij

2b Complete and accurate entry of mandatory
data

100%

Sialc Sialc Siale

N D % or#

25 25 |()<)"„

State response

NHDES completes the EPA Annual Data Verification to check and
correct (if needed) data entered into the RCRAInfo national database for
all compliance monitoring evaluation work. In addition, NHDES checks
RCRAInfo data on a quarterly basis as reported in MTRS.

Recommendation None

New Hampshire | Page 22


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RCRA Element 2 — Inspections

Finding 2-1	Meets or Exceeds Expectations

Summary	For FFY2019, NHDES exceeded the National Average for active Large

Quantity Generators (LQGs) at 11.3%. NHDES also inspects generator
categories other than LQGs, such as Small Quantity Generators (SQG)s,
Very Small Quantity Generators (VSQGs), Transporters and Others.
Twenty-five inspection files were reviewed. In each instance, the files
for these inspections included sufficient information to document the
compliance status of the facilities.

Explanation	Each of the twenty-five inspection files reviewed included facility

information, a description of RCRA-regulated activities, photographs
when appropriate, and supporting information including maps, facility-
diagrams, manifest history summaries, and descriptions of processes. In
all files, the violations that were cited were supported in the inspection
report. NH DES's inspection procedures ensure that inspectors are
completely evaluating each RCRA program element. Of the twenty-five
inspection reports, NHDES had final trip report completed within an
average of 113 days.

A review of Metrics 5b 1 of the DMA and relevant RCRAInfo data
shows that NHDES met or exceeded the national average in each metric.
Further, NHDES spends a considerable amount of time and effort in
inspecting non-notifiers, following-up on all citizen-complaints, and in
conducting inspections at VSQGs (11 inspections in FY 19), SQGs (6
inspections in FY 19), transporter/Hazardous Waste Transfer Facility 1
inspection in FY 19) and other sites inspected (3 inspections in FY 19).
There are no operating TSDFs in NH.

Of the twenty-five inspection reports completed during the time period
of this SRF, NHDES had a final trip report completed within a timely
average of 113 days. Four of the twenty-five inspection reports were
completed beyond 150 days due to difficulty getting the documents and
analytical results from the inspected facilities to determine if there were
violations and these were assigned to a new inspector. One of the five of
the twenty-five inspection reports completed beyond 150 days was a
facility that was extremely difficult to deal with and did not provide the
documents to determine if there were violations. Another one of the
twenty-five inspection reports completed beyond 150 days was not a
physical site inspection. It was a review of a Limited Permit Application
submitted on 5/12/2017. During the review process, NHDES
determined the facility was treating hazardous waste that was not
identified in the Limited Permit. The Notice of Findings was dated

New Hampshire | Page 23


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Relevant metrics

3/27/2018 (319 days) and the Report of Limited Permit was dated
5/1/2019 (719 days).

Metric ID Number and Description

Natl
Goal

Nail
Avti

Siale Siale
\ 1)

Siale

% or#

5a Two-year inspection coverage of operating
TSDFs

100%

89.9%

0

I)

<)"„

5b 1 Annual inspection coverage of LQGs

20%

9.3%

1 ^

I4S

1 I.V'„

6a Inspection reports complete and sufficient to
determine compliance

100%



25

25

1 <)(>"..

6b Timeliness of inspection report completion

100%



:u

25

X<)"„

State response In FFY 2019, NHDES had two LQG Flexibility Plans; one for

traditional LQGs to inspect 15% (16 facilities) and one for Retail
Pharmacy LQGs to inspect 5% (2 facilities). In FFY 19, NHDES
inspected 17 traditional LQGs of the universe of 108, and 2 retail
pharmacy LQGs of the universe of 36.

Recommendation None.

New Hampshire | Page 24


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RCRA Element 3

— Violations

Finding 3-1	Meets or Exceeds Expectations

Summary	NH DES prepares inspection reports that document compliance status

and determine violations and document the observed violations in their
inspection records and enforcement responses.

Explanation	Each of the 25 enforcement and confidential files reviewed had accurate

and complete descriptions of the violations observed during the
inspection and had adequate documentation to support NHDES's
compliance determinations. NHDES finds violations regularly during
their inspections. A review of Metrics 7b of the DMA and relevant
RCRAInfo data shows that NHDES exceeded the national average in
violations found during CEI and FCI compliance inspections.

Relevant metrics

,. . .... , , Natl	Natl	Stale	S(a(	Male

Metric ID Number and Description _ .	.	.

Goal	Avji	N	el)	"i. or#

7a. Accurate compliance determinations [Goal] 100%	%	25	25	lot)"..

7b. Violations found during CEI & FCI
compliance evaluations

8a. SNC Identification rate at sites with CEI and	^	_()

FCI compliance evaluations

8c. Appropriate SNC determinations [Goal] 100%	IS IS lot)".,

State Response NHDES completes a Hazardous Waste Generator Inspection Report for
each inspection which is enclosed with all Informal Enforcement
Actions. The Inspection Report documents compliance status at the time
of the inspection and classifies any violations as Class 1 (more serious)
or Class 2 (less serious).

Recommendation None.

New Hampshire | Page 25


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RCRA Element 4 — Enforcement

Finding 4-1

Meets or Exceeds Expectations

Summary	NHDES's has a very strong enforcement program where enforcement

actions are brought in a timely manner and return facilities to
compliance in a timely manner.

Explanation	NHDES's practice of issuing a Letter of a Deficiency (where there are

outstanding violations that need to be corrected), in advance of formal
enforcement, helps to achieve timely compliance to the violations cited,
often before the formal enforcement is issued. NHDES can also issue a
Notice of Finding to a generator to put them on notice of potential
violations and to request additional information.

NH DES issues formal enforcement actions to Facilities deemed as SV
violators as well as SNC violators. NH DES issues Administrative fines
or Civil penalties. Formal actions include: Administrative Fine by
Consent (AFC), Notices of Proposed Fines (NPF), Motion to accept
Settlement Agreements (MASA) and referrals to the New Hampshire
Department of Justice for Civil penalties and Criminal Penalties.

Informal Actions include Notice of Past Violation (NPV),, Letters of
Deficiency (LOD), Administrative Orders (AO) and Imminent Hazard
Orders (IHO).

Of the 25 files reviewed, NH DES issued 18 formal enforcement actions
with penalties (17 Administrative Fine by Consent and 1 Consent
Decree) and there are two facilities that have formal actions in progress.

Relevant metrics

Metric ID Number and Description

Natl Natl Siale Siale Siale
Goal Avii N I) "Mi or#

9a Enforcement that returns sites to compliance 100%

2(i 2(i loo",,

10a Number of SNY evaluations with timely
enforcement

10b Appropriate enforcement taken to address
violations

80% 78.6%

ld2 Number of informal enforcement actions
lf2 Number of formal enforcement actions

100%

2u I ()()".,

New Hampshire | Page 26


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State Response NHDES has an 2012 EPA approved Hazardous Waste Civil and

Administrative Enforcement Response Policy (ERP) that sets standards
and guidelines for timely and appropriate enforcement actions.

Recommendation None.

New Hampshire | Page 27


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RCRA Element 5

— Penalties

Finding 5-1

Meets or Exceeds Expectations

Summary	NH DES has a strong administrative and Civil enforcement program that

assesses and collects monetary penalties from both SV and SNC
violators.

Explanation	NH DES uses a penalty matrix approach to determine and document the

potential for harm and extent of deviation and brief narratives are
included to explain the matrix selected. EPA reviewed 18 penalties, NH
DES included the appropriate Economic Benefit and Gravity component
in all 18.

Relevant metrics . Natl	Natl Sialc Sialc	Sialc

Metric ID Number and Description	, .	. 		

Goal	Avii N I)	"<.or#

11a Penalty calculations include gravity and

. , ~,	IN IN I ()() ii

economic benefit

State response NHDES has a Hazardous Waste Enforcement Manager position that is
the lead on coordinating all administrative and civil enforcements for the
RCRA program.

Recommendation None.

New Hampshire | Page 28


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RCRA Element 5

— Penalties

Finding 5-2

Meets or Exceeds Expectations

Summary

NH DES has a strong administrative and Civil enforcement program that



assesses and collects monetary penalties from both SV and SNC



violators. NH DES includes the rationale for changes in penalties



between the initial penalty and the final penalty collected is very specific



and fully explains the reason and the extent of the reduction was



determined.

Explanation	NH DES uses a penalty matrix approach to determine and document the

potential for harm and extent of deviation and brief narratives are
included to explain the matrix selected.

NH DES uses a Base Penalty Computation Table that includes the
following: Violations documented in the Inspection report and Letter of
Deficiency, Penalty Calculation to include the potential for harm and
extent of deviation, Economic Benefit, Total Potential Penalty and
Proposed Penalty for Settlement. NHDES uses a Case Closure Memo
that documents the enforcement action and includes the final penalty
collected.

Relevant metrics

Metric ID Number and Description

12b Penalties collection

Natl Nail Siale Sialc Siale
Goal A\ji N I) V'iior#

12a Documentation of rationale for difference
between initial penalty calculation and final 100%
penalty

100%

IS IS |()()"„
IS IS |()()"„

State Response

The NHDES Hazardous Waste Enforcement Program documents all
penalty calculations, economic benefits, and penalty reductions to ensure
consistent and fair application of any penalties.

Recommendation None.

New Hampshire | Page 29


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