STATE REVIEW FRAMEWORK
Missouri
Clean Air Act
Implementation in Federal Fiscal Year 2018
U.S. Environmental Protection Agency
Region 7
Final Report
September 15, 2020
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I. Introduction
A. Overview of the State Review Framework
The State Review Framework (SRF) is a key mechanism for EPA oversight, providing a
nationally consistent process for reviewing the performance of state delegated compliance and
enforcement programs under three core federal statutes: Clean Air Act, Clean Water Act, and
Resource Conservation and Recovery Act. Through SRF, EPA periodically reviews such
programs using a standardized set of metrics to evaluate their performance against performance
standards laid out in federal statute, EPA regulations, policy, and guidance. When states do not
achieve standards, the EPA will work with them to improve performance.
Established in 2004, the review was developed jointly by EPA and Environmental Council of the
States (ECOS) in response to calls both inside and outside the agency for improved, more
consistent oversight of state delegated programs. The goals of the review that were agreed upon
at its formation remain relevant and unchanged today:
1. Ensure delegated and EPA-run programs meet federal policy and baseline performance
standards
2. Promote fair and consistent enforcement necessary to protect human health and the
environment
3. Promote equitable treatment and level interstate playing field for business
4. Provide transparency with publicly available data and reports
B. The Review Process
The review is conducted on a rolling five-year cycle such that all programs are reviewed
approximately once every five years. The EPA evaluates programs on a one-year period of
performance, typically the one-year prior to review, using a standard set of metrics to make
findings on performance in five areas (elements) around which the report is organized: data,
inspections, violations, enforcement, and penalties. Wherever program performance is found to
deviate significantly from federal policy or standards, the EPA will issue recommendations for
corrective action which are monitored by EPA until completed and program performance
improves.
The SRF is currently in its 4th Round (FY2018-2022) of reviews, preceded by Round 3
(FY2012-2017), Round 2 (2008-2011), and Round 1 (FY2004-2007). Additional information
and final reports can be found at the EPA website under State Review Framework.
II. Navigating the Report
The final report contains the results and relevant information from the review including EPA and
program contact information, metric values, performance findings and explanations, program
responses, and EPA recommendations for corrective action where any significant deficiencies in
performance were found.
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A. Metrics
There are two general types of metrics used to assess program performance. The first are data
metrics, which reflect verified inspection and enforcement data from the national data systems
of each media, or statute. The second, and generally more significant, are file metrics, which are
derived from the review of individual facility files in order to determine if the program is
performing their compliance and enforcement responsibilities adequately.
Other information considered by EPA to make performance findings in addition to the metrics
includes results from previous SRF reviews, data metrics from the years in-between reviews,
multi-year metric trends.
B. Performance Findings
The EPA makes findings on performance in five program areas:
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, accuracy of compliance determinations, and
determination of significant noncompliance (SNC) or high priority violators (HPV)
Enforcement - timeliness and appropriateness of enforcement, returning facilities to
compliance
Penalties - calculation including gravity and economic benefit components, assessment,
and collection
Though performance generally varies across a spectrum, for the purposes of conducting a
standardized review, SRF categorizes performance into three findings levels:
Meets or Exceeds: No issues are found. Base standards of performance are met or exceeded.
Area for Attention: Minor issues are found. One or more metrics indicates performance
issues related to quality, process, or policy. The implementing agency is considered able to
correct the issue without additional EPA oversight.
Area for Improvement: Significant issues are found. One or more metrics indicates routine
and/or widespread performance issues related to quality, process, or policy. A
recommendation for corrective action is issued which contains specific actions and schedule
for completion. The EPA monitors implementation until completion.
C. Recommendations for Corrective Action
Whenever the EPA makes a finding on performance of Area for Improvement, the EPA will
include a recommendation for corrective action, or recommendation, in the report. The purpose
of recommendations are to address significant performance issues and bring program
performance back in line with federal policy and standards. All recommendations should include
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specific actions and a schedule for completion, and their implementation is monitored by the
EPA until completion.
III. Review Process Information
Clean Air Act (CAA)
Key dates:
SRF Kickoff letter mailed to MDNR: February 22, 2019
File selection list sent to MDNR: May 20, 2019
Data Metric Analysis sent to MDNR: May 20, 2019
Entrance interview conducted: June 2019
File review conducted: June 30 - July 1, 2019
Exit interview conducted: July 1, 2019
Draft report sent to MDNR: December 19, 2019
Final report issued: September 15, 2020
State and EPA key contacts for review:
Darcy Bybee, MDNR Air Pollution Control Program, Director
Richard Swartz, MDNR Air Pollution Control Program Compliance & Enforcement Unit
Chief
Jeff Field, USEPA Region 7, Air Branch Chief (Retired July 2020)
Lisa Hani on, USEPA Region 7, Acting Air Branch (July 2020)
Lisa Gotto, USEPA Region 7, Air Compliance Officer
Joe Terriquez, USEPA Region 7, Air Compliance Officer
Kevin Barthol, USEPA Region 7, SRF Coordinator
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Executive Summary
Introduction
Clean Air Act (CAA)
Areas of Strong Performance
The following are aspects of the program that, according to the review, are being implemented at
a high level:
Clean Air Act (CAA)
MDNR's review of Title V annual certifications is exemplary.
MDNR's documentation of FCE elements in inspection reports as well as documentation
to determine compliance meets expectations.
Priority Issues to Address
The following are aspects of the program that, according to the review, are not meeting federal
standards and should be prioritized for management attention:
Clean Air Act (CAA)
The review exposed inaccuracies and discrepancies in the CAA database as compared to
MDNR facility files. The review also revealed missing Minimum Data Requirements
(MDRs).
Timely reporting of HPV determinations, compliance monitoring MDRs; stack test dates
and results; and enforcement MDRs are all below the national goal and national averages.
MDNR's FCE coverage of majors, mega-sites, and SM-80s is below the national goal
and national averages.
Where documentation was present to review, MDNR did not demonstrate proficiency
with accurate Federally Reportable Violation (FRV) and High Priority Violation (HPV)
compliance determinations.
MDNR uses separate tracking databases to track FRV and HPV violations despite the
fact that they are required elements of the national tracking system.
MDNR has created a unique category of compliance determination.
MDNR does not meet the objectives of the HPV policy in terms of enforcement
responses, compliance schedules, timeliness, and return to compliance.
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Penalty calculation documentation did not account for economic benefit. Some files did
not include documentation of penalty collection.
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Clean Air Act Findings
CAA Element 1 - Data
Finding 1-1
Area for Improvement
Summary:
The review exposed inaccuracies and discrepancies in the CAA database as compared to MDNR
facility files. The review also revealed missing Minimum Data Requirements (MDRs).
Explanation:
MDNR enters data directly into the EPA national enforcement data system, ICIS-Air. This data is
then made publicly available through EPA's ECHO website.
Database accuracy was evaluated by comparing the MDNR compliance and enforcement files with
the ECHO detailed facility reports (metric 2b). The review found 24.3% of files contained
complete and accurate data. The remaining files revealed discrepancies between the ECHO
database and the state files. The review also revealed missing minimum data elements. During the
review, EPA found instances of the following:
Information in ECHO, not in the file;
Information in the file, not ECHO; and
Information absent from file and ECHO, contained in separate discrete tracking
spreadsheets.
Common file/database inconsistencies include discrepancies for dates of events such as stack tests
and compliance certification submission. The files/database were also not consistent between the
date the document was sent vs. received.
Relevant metrics:
Metric ID Number and Description
2b Files reviewed where data are accurately
reflected in the national data system [GOAL]
Natl Natl State State State
Goal Avg N D %
100%
37 24.3%
State Response: The Air Program acknowledges the importance of accuracy and minimizing
discrepancies in our data. The Program had identified these issues and had implemented
corrective action, but had not made retroactive changes to our files by the time EPA began its
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review. We continue to review our current ICIS-Air data entry procedures and evaluate the
accuracy of data entry and our filing procedures. The Program will document modifications to
our procedures in revised Standard Operating Procedures (SOPs), and provide those to EPA
within 60 days of completion of the SRF Final Report.
We also request that EPA provide detail on the specific files where discrepancies were noted so
that we can ensure the official records are complete.
EPA RESPONSE TO STATE COMMENTS: The SRF final report and recommendations are
intended to provide corrective actions to address procedural deficiencies identified in the frozen
data from the subject review year. While the evaluation is data-focused, the recommendations
are process focused, aimed at strengthening state procedures and protocols to ensure future
adherence to national expectations of states authorized to implement the CAA program.
Retroactive changes to the states files and data are not required as part of the SRF process.
EPA acknowledges MDNR's review of current ICIS-AIR data entry protocols and evaluation of
the accuracy of data entry and filing procedures. These activities are aligned with the corrective
actions outlined in the draft SRF report and will be evaluated in accordance with the criteria
listed in the final report for close-out of each recommendation.
No changes have been made in the final report in response to this comment.
Recommendation:
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Due Dale Recommendation
EPA recommends MDNR evaluate current data entry procedures with
the goal of significantly improving accuracy in recording MDRs. EPA
recommends MDNR:
Implement the use of a data entry form, which may be provided
electronically to data entry staff upon completion of reportable
activities.
Provide Region 7 with a draft document (in the form of a
Standard Operating Procedure (SOP)), outlining the specific
process improvements designed to address the issues associated
with accurate data entry, for EPA review within 60 days of
completion of the SRF Final Report.
EPA will use the data frozen during the regular Annual Data
Metric Analysis (ADMA) process to assess progress on this
recommendation.
This recommendation will be deemed completed upon:
1. Implementation of a data entry form and EPA approved SOP;
and
2. Achievement of 85% or greater accuracy in metric 2b. EPA
will randomly pull five facilities in the MDNR FY20 frozen
data set in order to review progress of complete and accurate
reporting of MDRs. If the FY20 data pull does not achieve this
accuracy level, EPA will review data from subsequent years
until the threshold is met.
03/01/2021
CAA Element 1 - Data
Finding 1-2
Area for Improvement
Summary:
Timely reporting of HPV determinations, compliance monitoring MDRs; stack test dates and
results; and enforcement MDRs are all below the national goal and national averages.
Explanation:
The SRF preliminary data metric analysis revealed MDNR's timely reporting of HPV
determinations (metric 3a2) cannot be evaluated for the 2018 review period due to the lack of HPV
facilities for the subject review period. EPA addresses such anomalous cases by reviewing HPVs
from previous reporting periods (i.e., EPA reviewed MDNR HPVs from fiscal years 2016 and
2017 to account for this metric). This review is meaningful in a qualitative sense; however, it is
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not included as a quantitative metric herein because EPA cannot calculate percentages to be
compared nationally (i.e., percentage achievements calculated over the two-year time period
cannot be meaningfully compared to percentage achievements for the 2018 review period). In
short, EPA cannot comment on the timeliness of something that did not happen the review period.
The SRF review revealed a widespread issue with timeliness in reporting relevant enforcement
actions and milestones. In terms of the timeliness of reporting compliance monitoring MDRs
(metric 3b 1), the analysis of this data metric shows MDNR's achievement of this metric (45.2%)
is well below the national average (85.2%). The timely reporting stack test dates and results
(14.9%>) is likewise below the national average (65.1%>). With respect to metric 3b3, at 0%, MDNR
has failed to meet this metric across the board.
Relevant metrics:
Metric ID Number and Description
Natl
Goal
Natl
Avg
State
N
State
D
State
%
3a2 Timely reporting of HPV determinations
[GOAL]
100%
44.9%
0
0
0
3b 1 Timely reporting of compliance
monitoring MDRs [GOAL]
100%
85.2%
220
487
45.2%
3b2 Timely reporting of stack test dates and
results [GOAL]
100%
65.1%
51
343
14.9%
3b3 Timely reporting of enforcement MDRs
[GOAL]
100%
71.8%
0
3
0%
State Response: We acknowledge that adequate and timely reporting of our work is an essential
function. We have begun immediate corrective actions to ensure that previous data is uploaded to
ICIS-Air and future reporting is complete and timely. Specifically:
1. Our procedures now require that staff provide data to the ICIS-Air data steward in a
timely fashion, a minimum of twice per month.
2. It is now policy that the data steward and supervisory staff review and compare our
records to the Enforcement and Compliance History Online (ECHO) database on a
monthly basis, and coordinate with EPA staff to verify that the data uploaded to ICIS-Air
is accurate and complete.
3. Staff are all trained in the HPV and FRV policies.
While EPA has acknowledged improvements in the Program's FFY2019 data, we continue to
review our current procedures, train staff, and evaluate our coordination and communication
practices to ensure relevant data is timely provided to our staff members that are responsible for
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ICIS-Air data entry. We are also evaluating current workloads and considering a realignment of
duties to ensure data entry is prioritized.
We will document modifications to our procedures and include them in new SOPs, which we
will provide to EPA within 60 days of completion of the SRF Final Report.
EPA RESPONSE TO STATE COMMENTS: Noted. These efforts (proposed and implemented)
will be assessed and reviewed following issuance of the final report, which will include
recommendations for corrective actions to address the findings.
No changes have been made in the final report in response to this comment.
Recommendation:
Due Dale Recommendation
03/01/2021
EPA recommends MDNR evaluate current data entry procedures with
the goal of significantly improving timeliness in recording MDRs. To
achieve this goal, EPA recommends MDNR:
Implement data entry review and tracking procedures specific
to the relevant metrics (3al, 3bl, 3b2, 3b3).
Review the recently revised HPV policy to ensure familiarity
with the 2015 policy revisions.
Provide Region 7 with a draft of the process improvement (in
the form of an SOP) for review within 60 days of completion of
the SRF Final Report that addresses the timeliness for reporting
of HPV determinations; compliance MDRs; stack test dates and
results; and enforcement MDRs.
EPA will use the data frozen during the regular ADMA process
to assess progress on this recommendation.
This recommendation will be deemed completed upon:
1. Implementation of an EPA approved SOP; and achievement of
85% or greater in metrics 3al, 3bl, 3b2, and 3b3. EPA will
review MDNR FY20 frozen data in order to determine progress
in timely entry of MDRs. If the FY20 data does not meet this
threshold, EPA will review subsequent years data until met.
CAA Element 2 - Inspections
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Finding 2-1
Area for Improvement
Summary:
MDNR'sFCE coverage of majors, mega-sites, and SM-80s is below the national goal and national
averages.
Explanation:
EPA notes MDNR's FCE coverage of majors, mega-sites, and SM-80s has decreased since the last
review and is below the national goal and national averages.
Relevant metrics:
Metric ID Number and Description
Natl
Goal
Natl
Avg
State
N
State
D
State
%
5a FCE coverage: majors and mega-sites
[GOAL]
| 100%
88.1%
147
186
79% |
5b FCE coverage: SM-80s [GOAL]
| 100%
93.7%
89
117
76.1% |
State Response: Air Program staff reviewed internal databases and compared it to information
located in the ECHO database for FFY2018. We found a number of discrepancies specific to
major sources, mega-sites, and SM-80s listed within the databases that had gone out of business,
or were otherwise not part of this source category. In addition, we found discrepancies with the
number of inspections conducted in this source category. As a result of this review and the
discrepancies we identified, the Air Program believes this finding is a data integrity issue.
The Air Program respectfully requests that EPA staff re-run the data for the FFY2018 period to
verify corrections to the number of active facilities in this class and corrections to the number of
facilities inspected in this class. We believe updates to the database will show a marked
improvement in this metric. Furthermore, if the data reveals that this issue has been resolved by
our agency without additional oversight, we request that EPA consider reclassifying this issue as
an "area for attention."
Importantly, the Air Program has initiated steps to ensure data in ECHO and ICIS-Air is
accurately represented going forward. In March 2020, Program staff compared FFY2019 and
later data regarding these classes of facilities to data in the ECHO database and made necessary
updates. Air Program staff will discuss this area as necessary during coordination calls with EPA
Region 7 staff and we will document modifications to our procedures and include these
modifications in new SOPs, which we will provide to EPA within 60 days of completion of the
SRF Final Report.
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The Air Program is also working with EPA Region 7 staff to identify tools the Department's
regional office staff can utilize for inspection planning purposes - specifically information
relating to the date of last inspection for this class of facilities in the ECHO database. We will
develop SOPs specific to inspection planning to include utilization of the tools and data available
in ECHO. Due to the time it may take to work with Region 7 staff to identify the specific tools,
coordinate the use of these tools with our five regional offices, and to draft SOPs for our five
regional offices, the Air Program requests a deadline to submit these specific SOPs to EPA
within 120 days of completion of the SRF Final Report.
EPA RESPONSE TO STATE COMMENTS: We appreciate MDNR's considerable efforts to
conduct a root cause analysis of the FCE coverage issue in response to this finding in the draft
report.
Prior to the formal SRF in July 2019, MDNR had several opportunities to review and correct the
2018 data, including during the data verification period preceding the data freeze, as well as the
time period following transmittal of the file selection list. EPA does not re-run data metric
analyses post-file review. It is outside the framework protocol to re-review data that has been
cleaned up following the authorized review. We will evaluate process improvements made as a
result of the SRF analysis in the data in subsequent years to measure progress, per the
recommendations in the final report. EPA does not measure or record improvements made
during the SRF process to past frozen data, nor amend program findings for data clean-up
performed following the file review.
No changes have been made in the final report in response to this comment.
Importantly, the Air Program has initiated steps to ensure data in ECHO and ICIS-Air is
accurately represented going forward. In March 2020, Program staff compared FFY2019 and
later data regarding these classes of facilities to data in the ECHO database and made
necessary updates. Air Program staff will discuss this area as necessary during coordination
calls with EPA Region 7 staff and we will document modifications to our procedures and include
these modifications in new SOPs, which we will provide to EPA within 60 days of completion of
the SRF Final Report.
EPA acknowledges MDNR's initial steps to ensure data entry procedures for data in ECHO and
ICIS-AIR provide for accurate public-facing data in the future. These activities are aligned with
the corrective actions outlined in the draft SRF report and will be evaluated in accordance with
the criteria listed in the final report for close-out of each recommendation. We look forward to
reviewing the SOPs and progress MDNR has made following transmittal of the final report.
No changes have been made in the final report in response to this comment.
The Air Program is also working with EPA Region 7 staff to identify tools the Department's
regional office staff can utilize for inspection planning purposes - specifically information
relating to the date of last inspection for this class offacilities in the ECHO database. We will
develop SOPs specific to inspection planning to include utilization of the tools and data
available in ECHO. Due to the time it may take to work with Region 7 staff to identify the
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specific tools, coordinate the use of these tools with our five regional offices, and to draft SOPs
for our five regional offices, the Air Program requests a deadline to submit these specific SOPs
to EPA within 120 days of completion of the SRF Final Report.
MDNR's request to extend the deadline to submit the above referenced SOPs is reasonable. The
report has been amended to accommodate the requested timeline.
Recommendation:
Ucc
Due Dale
Recommendation
03/01/2021
EPA recommends MDNR evaluate the current EPA CMS policy with
the goal of improving FCE coverage. To achieve this goal, EPA
recommends MDNR:
Develop a written plan in the form of an SOP to address FCE
coverage in the state for EPA review within 120 days of
completion of the SRF Final Report.
Leverage our partnership though direct communication during
EPA/MDNR monthly calls as well as during the CMS Plan
planning process to address the FCE (majors, mega-sites, and
SM-80s) coverage deficit.
EPA will use the data frozen during the regular ADMA process
to assess progress on this recommendation.
This recommendation will be deemed completed upon:
1. Implementation of an EPA approved SOP; and
2. Achievement of 85% or greater in metrics 5a and 5b. EPA will
review MDNR FY20 frozen data in order to review progress of
FCE coverage (majors, mega-sites, and SM-80s). If the FY20
data pull does not achieve this threshold, EPA will review data
from subsequent years until the threshold is met.
CAA Element 2 - Inspections
Finding 2-2
Meets or Exceeds Expectations
Summary:
MDNR's review of Title V annual certifications is exemplary.
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Explanation:
MDNR's review of Title V annual certifications is exemplary, at 94.9%, the state is well above
the national average and close to the national goal.
Relevant metrics:
i»t ^ i r» u j rv x- Natl Natl State State State
Metric II) Number and Description , ... ...
1 Goal Avg N D %
5e Reviews of Title V annual compliance ; |00% f g2 J% 24Q 25J 949%
certifications completed [GOAL] |
State Response: The Air Program appreciates EPA's acknowledgement of our success under
this element.
EPA RESPONSE TO STATE COMMENTS: No changes have been made in the final report in
response to this comment.
CAA Element 2 - Inspections
Finding 2-3
Meets or Exceeds Expectations
Summary:
MDNR's documentation of FCE elements in inspection reports as well as documentation to
determine compliance meets expectations.
Explanation:
In Missouri's inspection report documentation of FCE elements, compliance issues are generally
described succinctly in the narrative portion. The reports are clear about the steps necessary for a
facilities' return to compliance. MDNR's review of Compliance Monitoring Reports and files that
provide sufficient documentation to determine compliance meets expectations. EPA did find that
the reports were variable in quality among the district offices. The highest quality reports contain
strong, detailed narratives to connect the data and provide transparency to the regulated community
and public. Some are simple box checks, which proves difficult to evaluate completeness and
accuracy.
Relevant metrics:
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Metric ID Number and Description
Natl
Goal
Natl
Avg
State
N
State
D
State
%
6a Documentation of FCE elements [GOAL]
100%
23
26
88.5%
6b Compliance monitoring reports (CMRs) or
facility files reviewed that provide sufficient
documentation to determine compliance of the
facility [GOAL]
100%
24
28
85.7%
State Response: The Air Program appreciates EPA's acknowledgement of our success under
this element.
EPA RESPONSE TO STATE COMMENTS: No changes have been made in the final report in
response to this comment.
CAA Element 3 - Violations
Finding 3-1
Area for Improvement
Summary:
Where documentation was present to review, MDNR did not demonstrate proficiency with
accurate Federally Reportable Violation (FRV) and High Priority Violation (HPV) compliance
determinations.
MDNR uses separate tracking databases to track these violations despite the fact that they are
required elements of the national tracking system.
MDNR has created a unique category of compliance determination.
Explanation:
MDNR's FRV and HPV discovery rate (Metrics 7al and 8a) in FY18 was zero, and therefore
below national averages. Because no HPVs were identified, EPA cannot evaluate the timeliness
of HPV determinations for the review period (Metric 13).
Accuracy of compliance determinations (37.8%), and accuracy of HPV determinations (71.4%)
are below national averages. In several cases, the documentation to evaluate the accuracy of
compliance determinations was absent from the state files. In files where documentation was
present, MDNR frequently made inaccurate FRV and HPV compliance determinations (i.e.,
MDNR compliance determinations were not consistent with national FRV and HPV policy,
facilities with violations that are normally classified are FRV and HPV were not classified as such).
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For facilities where file documentation demonstrates FRV and HPV violations were discovered
and not classified appropriately, MDNR tracked these violations on a separate internal spreadsheet;
these data were not entered and tracked in national databases.
MDNR has created a unique category of compliance determination. Numerous facility files
contained compliance determination letters notifying facilities of findings outside national
compliance categories. For facilities with violations requiring formal and informal enforcement
actions, in lieu of Letters of Warning and Notices of Violation, MDNR routinely notified non-
compliant facilities with a letter of "Unsatisfactory Findings." These letters did not contain follow-
up actions to correct deficiencies; nor was a facility response requested. There is no national
database category to tabulate and track these "Unsatisfactory Findings" citations. Such findings
and letters are not nationally consistent and circumvent the public awareness of CAA violators in
their communities. This protocol does not provide for a formal return to compliance.
Relevant metrics:
Metric ID Number and Description
Natl
Goal
Natl
Avg
State
N
State
D
State
%
13 Timeliness of HPV Identification [GOAL]
100%
89.5%
0
0
0
7a Accurate compliance determinations
[GOAL]
100%
14
37
37.8%
7al FRV 'discovery rate' based on inspections
at active CMS sources
7.8%
0
505
0%
8a HPV discovery rate at majors
2.5%
0
267
0%
8c Accuracy of HPV determinations [GOAL]
100%
|
1 15
21
71.4%
State Response: First, the Department believes that this finding does not reflect any failure by
the Air Program to evaluate compliance, document violations, or work with facilities to correct
violations during the time period evaluated. In support, we are attaching reports to illustrate the
successful efforts by the Air Program to address FRVs through compliance assistance and
through referrals and orders during FFY17 and FFY18.
The Air Program nevertheless acknowledges the importance of appropriately classifying
violations as FRV and/or HPV, and we have begun immediate corrective actions to ensure the
appropriate classification of all violations. Specifically:
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1. Our procedures now require that staff identify compliance issues as FRVs and HPVs, if
the issues fall into these categories of violation, in inspection reports and correspondence
sent to facilities to ensure proper documentation of the violations.
2. Supervisors and managers must review documentation of compliance issues to ensure
staff determinations are accurate and follow the FRV and HPV policies.
3. Staff are trained regarding proper compliance evaluation determinations.
4. Staff are trained in the HPV and FRV policies, including the requirement to notify
facilities of HPVs within 45 days of discovery.
The Air Program conducted individual training on FRV and HPV policies with all relevant staff
members. In addition, the Program is developing training materials to present to all compliance
and enforcement staff, including regional office inspectors, during a scheduled training event this
coming June.
EPA further expressed concern about the Air Program's use of separate databases to track
violations. The databases that the Air Program use are important communication tools between
the Air Program, the Department's Regional Offices, and other programs within the Division of
Environmental Quality. They allow program and regional staff to view compliance and
enforcement data across the programs and across the state. In addition, the Air Program uses
these internal databases to generate reports regarding inspection and enforcement activities to
share with the public, stakeholders, and the Missouri Air Conservation Commission. EPA's
ECHO and ICIS-Air databases do not have the tools we need to fulfill these functions and are not
broadly available to Department staff. While having duplicate databases may be seen as
inefficient, the important outcome here is that the correct information is entered into EPA's
national tracking system. We are committed to ensuring that all relevant information is properly
submitted by the Air Program.
Finally, EPA noted that the Department is using a unique category of compliance in the Air
Program. While we understand EPA's concern with national consistency, the Department
believes that the use of "unsatisfactory finding" letters is consistent with EPA's September 2014
memorandum regarding Guidance on Federally-Reportable Violations for Clean Air Act
Stationary Sources. In that memorandum, EPA details that formal notice of a FRV or potential
FRV to a source may be provided in a variety of ways:
For example, such formal notice may be a Notice of Violation (NOV), Notice to Correct
(NTC), Notice of Opportunity to Correct (NOC), Notice to Comply (NTC), or Notice of
Noncompliance (NON). Regardless of the name of the formal notice of violation, if
the purpose of the formal notice is to notify a source of an FRV, it is to be reported to
ICIS-Air. (Emphasis added).
As the attached policy excerpt shows, the use of an "unsatisfactory finding" letter is to formally
notify a source of a compliance issue and the requirement to take necessary action to resolve the
compliance issue. Therefore, we believe that issuing a notice of "unsatisfactory finding" and
reporting these letters to ICIS-Air achieves the desired outcome of formally notifying a source of
a FRV or potential FRV.
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EPA RESPONSE TO STATE COMMENTS: The submitted MDNR internal reports are outside
the scope of the SRF Round 4 review. These reports do not provide additional relevant evidence
for EPA to evaluate MDNR's accuracy of compliance determinations in the CAA program.
The Round 4 SRF evaluation studied 35 facilities that were selected as a representative sample of
all aspects of MDNR's CAA compliance and enforcement work for the 2018 fiscal year. In
reviewing the supplemental information provided, it appears MDNR has provided a list of
finalized agreements with seventeen facilities in various program areas outside of the CAA SRF
review areas; programs such as asbestos, which are beyond the scope of this CAA SRF review.
For the single applicable facility (Northstar Battery) that could potentially be subject to this
review, a) this facility was not among the predetermined SRF facility set; and b) there is no
material to give context to the basis and nature of the agreement executed in 2018 to inform an
evaluation, including information on the particular violation(s), timelines, procedures, reporting,
public access to data, penalties (if any), and resolution. EPA therefore cannot use the
supplemental information to inform the final report.
No changes have been made in the final report in response to this comment.
The Air Program nevertheless acknowledges the importance of appropriately classifying
violations as FRV and/or HPV, and we have begun immediate corrective actions to ensure the
appropriate classification of all violations. Specifically:
1. Our procedures now require that staff identify compliance issues as FRVs and
HPVs, if the issues fall into these categories of violation, in inspection reports and
correspondence sent to facilities to ensure proper documentation of the
violations.
2. Supervisors and managers must review documentation of compliance issues to
ensure staff determinations are accurate andfollow the FRV and HPV policies.
3. Staff are trained regarding proper compliance evaluation determinations.
4. Staff are trained in the HPV and FRV policies, including the requirement to
notify facilities of HPVs within 45 days of discovery.
The Air Program conducted individual training on FRV and HPV policies with all relevant staff
members. In addition, the Program is developing training materials to present to all compliance
and enforcement staff, including regional office inspectors, during a scheduled training event
this coming June.
Noted. EPA acknowledges MDNR's above listed steps to ensure the appropriate classification of
all CAA violations. These activities are aligned with the spirit of the corrective actions outlined
in the draft SRF report and will be evaluated in accordance with the criteria listed in the final
report for close-out of each recommendation. We look forward to reviewing the progress MDNR
has made following issuance of the final report.
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No changes to the report have been made in response to the information provided.
EPA further expressed concern about the Air Program's use of separate databases to track
violations. The databases that the Air Program use are important communication tools between
the Air Program, the Department's Regional Offices, and other programs within the Division of
Environmental Quality. They allow program and regional staff to view compliance and
enforcement data across the programs and across the state. In addition, the Air Program uses
these internal databases to generate reports regarding inspection and enforcement activities to
share with the public, stakeholders, and the Missouri Air Conservation Commission. EPA 's
ECHO and ICIS-Air databases do not have the tools we need to fulfill these functions and are
not broadly available to Department staff. While having duplicate databases may be seen as
inefficient, the important outcome here is that the correct information is entered into EPA's
national tracking system. We are committed to ensuring that all relevant information is properly
submitted by the Air Program.
Complete and accurate data are vital to our understanding of current air quality conditions in our
states, and critical to our effective planning for the future. In an era of access constraints and
dwindling resources, data that give an accurate picture of the conditions in our states are crucial
in shaping our work, present and future.
EPA does not prevent the use of multiple internal databases to track and present CAA
compliance and enforcement information. Through discussions with technical staff and review of
the internal and external databases, EPA concluded that data inaccuracies and discrepancy issues
identified in the national public facing database, in part, likely stem from the duplication of effort
inherent in dual tracking systems.
A key program expectation is that of ensuring the public facing data is accurate and complete. As
articulated in EPA's September 2014 Guidance on Federally-Reportable Violations for Clean Air
Act Stationary Sources (FRV guidance), a fundamental principle of effective compliance
monitoring programs is having a complete and accurate inventory of sources with timely
information on potential compliance problems. Reporting violations of the CAA in a national
data system is critical at the federal, state, and local levels; and vital to the communities we
serve. While our ultimate purview is the national database, EPA views the existence of multiple
internal state databases as a potential roadblock to accurate reporting to our public facing
systems.
Finally, EPA noted that the Department is using a unique category of compliance in the Air
Program. While we understand EPA 's concern with national consistency, the Department
believes that the use of "unsatisfactory finding" letters is consistent with EPA 's September 2014
memorandum regarding Guidance on Federally-Reportable Violations for Clean Air Act
Stationary Sources. In that memorandum, EPA details that formal notice of a FRV or potential
FRV to a source may be provided in a variety of ways:
For example, such formal notice may be a Notice of Violation (NOV), Notice to Correct (NTC),
Notice of Opportunity to Correct (NOC), Notice to Comply (NTC), or Notice of Noncompliance
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(NON). Regardless of the name of the formal notice of violation, if the purpose of the formal
notice is to notify a source of an FRV, it is to be reported to ICIS-Air. (Emphasis added).
As the attached policy excerpt shows, the use of an "unsatisfactory finding" letter is to formally
notify a source of a compliance issue and the requirement to take necessary action to resolve the
compliance issue. Therefore, we believe that issuing a notice of "unsatisfactory finding" and
reporting these letters to ICIS-Air achieves the desired outcome of formally notifying a source of
a FRV or potential FRV.
The SRF review comparing the national database with the state files during the SRF review
demonstrated the state is not following the national guidance and expected procedures for
elements of compliance determinations. EPA reiterates the draft report in stating here that the
state's facility files demonstrate MDNR processes for evaluating violations, reporting violations,
tracking violations, and ensuring return to compliance fall outside national expectations,
guidance and practices.
Regarding the issue of the unique category of violation created by MDNR (i.e., Unsatisfactory
Findings - No Response Required letters), the state has misinterpreted the FRV guidance,
which does not allow for the creation of a unique category of compliance determination. There is
no flexibility in the guidance to create a unique type of enforcement category for violations that
require facility responses, federal reporting and tracking. No flexibility exists in the national
program to take an alternate path with violations in terms of follow-up and return to compliance.
It is not the title of the notice at issue, it is the content of the notice and absence of a required
facility response that deviates from the national expectations. It is not the name of the notice that
is in question, it is the use of a unique type of notice that is not recorded and tracked in the
national data base for public awareness that is at issue. The unique notices fail to meet national
expectations in the following areas: violation reporting, tracking, and return to compliance; as
outlined in the FRV guidance.
As discussed in greater detail below, MDNR's FRV and HPV discovery rate data in the national
data system (Metrics 7al and 8a) in FFY18 was zero; no Federally Reportable or High Priority
violators were identified to the public in data reports to communities in Missouri. The SRF
review of a representative set of files reveal that there were facilities that violated the CAA (per
HPV and FRV guidances) in FFY18, violations which require federal reporting, responses,
tracking and return to compliance.
The lack of public notice and access to a broader range of information on the violations and air
pollution that affect communities is a key issue. The program staff skill in identifying and
correcting violation cannot be evaluated when the process and data availability deviate from
national expectations. The need and emphasis on this reporting in the national system is
emphasized in the national FRV guidance as follows, "Reporting of violations of the CAA in the
national air compliance and enforcement data system. ICIS-Air (successor to AFS). is critical
for national program management and oversight as well as for transparency and public access
purposes."
EPA issued the September 2014 FRV guidance because routine State Review Framework (SRF)
evaluations confirmed inconsistent and under-reporting of violations by states. The final SRF
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report includes the statement that, for facilities where file documentation demonstrates FRV and
HPV violations were discovered and not classified appropriately, MDNR tracked these violations
on a separate internal spreadsheet; these data were not entered and tracked in national databases.
As a means of addressing these findings, EPA has added the following amended
recommendations in the final SRF report, aimed at strengthening our communication on these
issues along with MDNR's program success in this area:
EPA will provide training on FRV and HPV policies.
EPA and MDNR will review and discuss all MO CAA violations, FRV and HPV actions
on a bi-weekly frequency during state and federal compliance/enforcement calls.
EPA and MDNR will implement a shared facility Compliance Determination OneDrive
(or similar electronic sharing mechanism) hub to facilitate transparent shared
documentation of all enforcement determinations in the state, as compared to the national
policies, for each facility inspected.
o EPA will provide a fillable form (i.e., Compliance Determination Form) for
MDNR to document compliance/enforcement decisions for the purpose of
streamlining and communicating compliance determinations,
o Compliance Determination Forms will require report out of the following:
¦ Violations found in each inspection, with an emphasis on FRV/HPV
criteria;
¦ A comparison of each violation with a comprehensive list of all potential
FRV and HPV violations;
¦ Documentation of required follow-up corrective actions, including
timeline to completion.
o All facility Compliance Determination Documents will be discussed on bi-weekly
calls.
o Data pulls from the national database will be discussed on monthly calls.
Following one year of implementing the training, Compliance Determination Forms, and joint
enforcement calls, EPA will conduct a partial, focused SRF to evaluate progress on metrics 7, 8
and 13.
Recommendation:
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EPA Recommends:
MDNR discontinue the use of nationally inconsistent
"Unsatisfactory Findings" compliance determinations and
letters.
As a means to address accuracy and national consistency in
compliance determinations, EPA will provide training on FRV
and HPV policies.
EPA and MDNR will review and discuss all MO CAA
violations, FRV and HPV actions on a bi-weekly frequency
during state and federal compliance/enforcement calls.
EPA and MDNR will implement a shared facility Compliance
Determination OneDrive (or similar electronic sharing
mechanism) hub to facilitate transparent shared documentation
of all enforcement determinations in the state, as compared to
the national policies, for each facility inspected.
o EPA will provide a fillable form (i.e., Compliance
Determination Form) for MDNR to document
compliance/enforcement decisions for the purpose of
streamlining and communicating compliance
determinations.
1
03/01/2021
o Compliance Determination Forms will require report
out of the following:
¦ Violations found in each inspection, with an
emphasis on FRV/HPV criteria;
¦ A comparison of each violation with a
comprehensive list of all potential FRV and
HPV violations;
¦ Documentation of required follow-up corrective
actions, including timeline to completion.
o All facility Compliance Determination Documents will
be discussed on bi-weekly calls.
o Data pulls from the national database will be discussed
on monthly calls.
Following one year of implementing the training, Compliance
Determination Forms, and joint enforcement calls, EPA will conduct a
partial, focused SRF to evaluate progress on metrics 7, 8 and 13.
This recommendation will be deemed completed upon:
1. Implementation of EPA/MDNR bi-weekly conference calls;
and
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2. EPA will randomly pull a selection of facilities from the FY20
frozen data set for review. If the sampling indicates that
accuracy of compliance determinations and HPV
determinations have sufficiently improved (85% or greater) and
FRV and HPV data entry are accurate in the national system,
EPA will close this recommendation. If the FY20 data pull does
not achieve this accuracy level, EPA will review data from
subsequent years until the threshold is met.
CAA Element 4 - Enforcement
Finding 4-1
Area for Improvement
Summary:
MDNR does not meet the objectives of the HPV policy in terms of enforcement responses,
compliance schedules, timeliness, and return to compliance.
Explanation:
With respect to the state's formal enforcement responses (Metric 9a), MDNRs achievement is
58.3%.
Regarding the state's performance addressing and/or removing HPVs consistent with the HPV
policy (Metric 10a), EPA finds through file review and discussions with management and staff,
the state does not apply the policy as written.
Regarding metrics 10b and 14, (i.e., case development and resolution timeline in place when
required that contains required policy elements), the absence of HPV facilities discovered by
MDNR during the 2018 review period was addressed by widening the lens of review of the state
program in this area to multiple previous years. This action was taken in order to evaluate the
state program's progress in these metrics since the Round 3 report findings were issued. As a
means to measure the state's performance and success in these areas, Region 7 recognizes that an
average quantitative metric over several years of the state's performance in these areas may be
applied to the years outside the review period as a means of reaching broad overarching
conclusions for strengthening performance in this area.
Relevant metrics:
Page 24 of 65
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Metric ID Number and Description
Natl
Goal
Natl
Avg
State
N
State
D
State
%
10a Timeliness of addressing HPVs or
alternatively having a case development and
resolution timeline in place
100%
1
8
12.5%
10b Percent of HPVs that have been addressed
or removed consistent with the HPV Policy
[GOAL]
100%
|
| 1
4
25%
14 HPV case development and resolution
timeline in place when required that contains
required policy elements [GOAL]
100%
0
3
0%
9a Formal enforcement responses that include
required corrective action that will return the
facility to compliance in a specified time frame
or the facility fixed the problem without a
compliance schedule [GOAL]
100%
7
12
58.3%
State Response: Without knowing in which files EPA found deficiencies, it is impossible for the
state to respond specifically as to the accuracy of this finding. There may be cases in which the
violation was resolved through a non-formal process that did not require case development or a
resolution timeline. In other cases, those mechanisms may have been developed but, consistent
with past practice, were not documented in the paper file. In order to provide a thorough
response, it is necessary to know which files EPA reviewed.
Further, the report notes with regard to metrics 10B and 14 that "the low sample population size
of HPV facilities reviewed from multiple previous years does not offer a reliable picture of the
state's performance and success." The report also notes that "the relatively small sample size
diminishes the confidence in these results." Given these limitations, the Department requests that
EPA withdraw these findings from the final report or provide a determination of "Inconclusive,"
rather than have the record reflect a performance result that is not well-documented.
The Department also requests that the sample size used for metrics 10b and 9a be re-considered
in the same light.
The Department nevertheless recognizes the importance of addressing and/or removing HPVs,
consistent with EPA's HPV policy, and ensuring that these efforts are documented. We have
begun immediate corrective actions. Specifically:
Page 25 of 65
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1. Procedures now require staff to develop a resolution time frame for cases that may take
more than 180 days to resolve, and share that with the Compliance and Enforcement
Section Chief.
2. Procedures now require the Compliance and Enforcement Section Chief share a
resolution time frame with appropriate EPA staff for any cases that may take more than
180 days to resolve.
3. Procedures now require HPVs to be addressed or removed consistent with the HPV
policy.
4. Staff are trained regarding formal enforcement responses that include required
corrective actions that will return the facility to compliance in a specified time frame.
5. Staff are trained regarding timely HPV case development and resolution.
6. Procedures now require staff to identify compliance issues noted in inspection reports
and correspondence to facilities as FRVs and HPVs, if the issues fall into these categories
of violation, to ensure proper documentation of the issues.
7. Procedures now require supervisors and managers to review documentation of
compliance issues to ensure staff determinations are accurate and follow the FRV and
HPV policies.
8. The Air Program is developing training material to present to Compliance and
Enforcement staff, including regional office inspectors, during a scheduled training event
in June 2020.
Again, the Department believes that this finding does not reflect any failure by the Air Program
to evaluate compliance, document violations, or work with facilities to correct violations,
regardless of FRV or HPV status, during the time period evaluated. The four attached reports
illustrate the successful efforts by the Department during FFY2017 and FFY2018 to address
FRVs through compliance assistance and through referrals and orders. The Air Program will
document updated processes regarding this issue and include them in SOPs, which we will
provide to EPA Region 7 within 60 days of completion of the SRF Final Report. The submittal
will also contain a detailed description of the tracking system we use for HPV enforcement
cases. Air Program staff will discuss the progress of HPV enforcement cases, including any
foreseeable delays in case development and resolution of cases, during coordination calls with
EPA Region 7 staff.
EPA RESPONSE TO STATE COMMENTS: EPA transmitted the facility file selection list for
review on May 20, 2019. Additionally, EPA forwarded the file selection list prior to the entrance
interview in June of 2019. Considerable time, effort, and discussions among EPA and MDNR
staff were devoted to selecting the facility files.
There may be cases in which the violation was resolved through a non-formal process that did
not require case development or a resolution timeline.
The method of addressing an HPV or FRV violations through a "non-formal process" is
antithetical to the required formal procedures for addressing these high priority or federally
reportable violations. Non-formal processes are outside national guidance, expectations and
acceptable practices for states authorized to address and correct stationary source CAA program
violations. The HPV classification is, by definition, a formal process, requiring formal case
Page 26 of 65
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development, as well as resolution in a timely manner. To resolve HPVs in an informal manner,
without documentation, reporting and tracking of the resolution, is a deviation from national
program requirements.
In other cases, those mechanisms may have been developed but, consistent with past practice,
were not documented in the paper file. In order to provide a thorough response, it is necessary to
know which files EPA reviewed.
A key overarching finding for the round 4 SRF review is past practices of not documenting
violations, timelines and resolutions in the paper files does not serve to inform EPA and the
public of any actions the state has taken in implementing and enforcing the CAA program.
Further, the report notes with regard to metrics 10B and 14 that "the low sample population size
ofHPVfacilities reviewedfrom multiple previous years does not offer a reliable picture of the
state's performance and success. " The report also notes that "the relatively small sample size
diminishes the confidence in these results. " Given these limitations, the Department requests that
EPA withdraw these findings from the final report or provide a determination of "Inconclusive, "
rather than have the record reflect a performance result that is not well-documented. The
Department also requests that the sample size usedfor metrics 10b and 9a be re-considered in
the same light.
As was discussed with MDNR staff prior to the file review, the sample population size for the
review period is problematic for a number of reasons. The state Data Metric Analysis performed
on the 2018 frozen data prior to the formal SRF file review (transmitted to MDNR via email on
May 20, 2019) recorded MDNR's FRV and HPV discovery rates are 0% and 0%, well below the
national averages of 7.8% and 2.5%, respectively. In order to review the aspects ofHPV case
timeliness, development, and resolution captured by SRF metrics 9a, 10a, 10b, and 14, the SRF
process provides for an extended review period to previous years in order to identify facilities
and gain a broader understanding of program performance in these metrics for the time period
since the Round 3 review of the data. When HPVs are not reported, EPA looks to previous years
to provide recommendations for strengthening MDNRs discovery, timeliness and corrective
actions for HPV and FRVs.
EPA notes the absence of HPVs and FRVs for the 2018 review period can likely be attributed to
one of two factors, a) data and reporting problems; or b) the potential (as discussed above) for
inaccurate compliance determinations. Our review of the files did conclude that there are high
priority violators in the state, as defined in the HPV policy; and the state is not categorizing and
following up on HPVs per national expectations.
EPA is confident in the essence of the conclusions drawn from the data reviewed; however to
clarify the findings, the report has been amended as follows, "... the absence ofHPV facilities
discovered by MDNR during t w period was addressed by widening the lens of
review of the state program in this area lew-sample-peettlatieft-sige-ef-HPy-feeUffcies-peyiewed
frem-to multiple previous years. This action was taken in order to evaluate the state program's
progress in these metrics since the Round 3 report findings were issued, as a. means to measure
4e_Het-e|^F-a-FeViftye-pt6ttH:e-(aft4-peF6ewtege)-ef-the state's performance and success in these
Page 27 of 65
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areasT As-vrtth-aH-metftes^-safflple-siae-mttst-be-eeftsidefed-HWfrtefpfeti«g4he-Fes«lts4iste4%ele₯^
WfeeR-eeftdttetmg-FeseaFebT-qtialtty-sampUftg-tHay-be-ebaFaeteftzed-by^he-mHHbeMftd-seleetieft
efstt]3je6ts_eli^bsel^a£eftST4)btajfttttg-ar^afHpk-si2e4ka*4s-appfepftftte4fl-be&-Fegafels4s-6ftti6al-
feiHHaHy-FeaseftST-Mest-HHpertaHttyT^laFge-sample-sise-js-tHeFe-FepFeseRtatHfe-ef^he-peptriatieftj
FetetHfely-^ffiaH-sample-sise-dHHHttsbes4he-6©ft64eft6e4«4hese-Festtksr-Region 7 alse-recognizes
that an average quantitative metric over several years of the state's performance in these areas
may be applied to the years outside the review period as a. means of reaching broad overarching
conclusions for strengthening performance in this area. ^krte4he-eeftektsteft»4hat-6aH-be-dfa₯m
The Department nevertheless recognizes the importance of addressing and/or removing HPVs,
consistent with EPA 's HPVpolicy, and ensuring that these efforts are documented. We have
begun immediate corrective actions. Specifically:
1. Procedures now require staff to develop a resolution time frame for cases that may
take more than 180 days to resolve, and share that with the Compliance and Enforcement
Section Chief.
2. Procedures now require the Compliance and Enforcement Section Chief share a
resolution time frame with appropriate EPA staff for any cases that may take more than 180 days
to resolve.
3. Procedures now require HPVs to be addressed or removed consistent with the HPV
policy.
4. Staff are trained regarding formal enforcement responses that include required
corrective actions that will return the facility to compliance in a specified time frame.
5. Staff are trained regarding timely HPV case development and resolution.
6. Procedures now require staff to identify compliance issues noted in inspection reports
and correspondence to facilities as FRVs and HPVs, if the issues fall into these categories of
violation, to ensure proper documentation of the issues.
7. Procedures now require supervisors and managers to review documentation of
compliance issues to ensure staff determinations are accurate andfollow the FRV and HPV
policies.
8. The Air Program is developing training material to present to Compliance and
Enforcement staff, including regional office inspectors, during a scheduled training event in June
2020.
EPA acknowledges MDNR's initial steps to address Data metrics 9a, 10a, 10b, and 14. These
activities are aligned with the corrective actions outlined in the draft SRF report and will be
evaluated in accordance with the criteria listed in the final report for close-out of each
recommendation. We look forward to reviewing the progress MDNR has made following
issuance of the final report.
Again, the Department believes that this finding does not reflect any failure by the Air Program
to evaluate compliance, document violations, or work with facilities to correct violations,
regardless of FRV or HPV status, during the time period evaluated. The four attached reports
Page 28 of 65
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illustrate the successful efforts by the Department during FFY2017 andFFY2018 to address
FRVs through compliance assistance and through referrals and orders.
See EPA Response in Finding 3.1
No changes have been made in the final report in response to this comment.
The Air Program will document updated processes regarding this issue and include them in
SOPs, which we will provide to EPA Region 7 within 60 days of completion of the SRF Final
Report. The submittal will also contain a detailed description of the tracking system we use for
HPV enforcement cases. Air Program staff will discuss the progress ofHPV enforcement cases,
including any foreseeable delays in case development and resolution of cases, during
coordination calls with EPA Region 7 staff.
Noted.
Recommendation:
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EPA understands HPV cases are more complex and require additional
time to resolve. EPA recommends MDNR develop an SOP for EPA
review that describes, a) the process to identify; and b) system to track
HPV and formal enforcement responses. The SOP should address:
Formal enforcement responses that include required corrective
action that will return the facility to compliance in a specified
time frame;
Timely HPV case development and resolution; and
Data entry for HPV and formal enforcement responses.
Implementation of an HPV case and formal enforcement response
tracking system (with entry to ICIS-AIR) will allow MDNR to identify
areas for improvement in HPV cases development and assist in
meeting the HPV policy for timely enforcement. The SOP should also
include a written plan for information sharing with EPA. This process
will be communicated in the form of a written SOP for review and
approval by EPA by December 1, 2020. This submittal should include
a copy/printout from the tracking system used for HPV enforcement
cases.
EPA and MDNR will discuss progress of HPV enforcement cases
during monthly enforcement coordination meetings; coordinate and
communicate the progress and updates to ensure appropriate follow-
ups. MDNR should include discussion of any foreseeable delays to
Region 7 staff during monthly coordination calls, or as needed.
This recommendation will be deemed complete upon:
1. Submittal and adequate implementation of the SOP;
2. EPA review of MDNR data and facility files for HPV and
formal enforcement responses. During the FY20 annual data
metric analysis, EPA will review MDNR frozen data and will
randomly pull a selection of facilities from the data set. If the
sampling of files indicates achievement of 85% of the relevant
metrics (9a, 10a, 10b, 14) and adequate implementation of the
SOP, EPA will close this recommendation. If the FY20 pull
does not achieve this threshold, EPA will review data from
subsequent years until the threshold is met.
CAA Element 5 - Penalties
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Finding 5-1
Area for Improvement
Summary:
Penalty calculation documentation did not account for economic benefit. Some files did not
include documentation that penalties were collected.
Explanation:
For the MDNR 2018 files reviewed, one of the files included the penalty calculation worksheets.
In terms of penalty collection, EPA did not consistently find documentation in the file that penalties
were collected.
Relevant metrics:
1 la Penalty calculations reviewed that document
gravity and economic benefit [GOAL]
100%
0%
12b Penalties collected [GOAL]
100%
60%
State Response: Without knowing in which files EPA found deficiencies, we cannot provide a
detailed response. We request additional information on the specific files regarding missing
penalty documentation so we can ensure the official records are complete. While some of the
files that EPA reviewed apparently did not include documentation that penalties were collected,
the Department did in fact collect all penalties assessed, or referred cases to the Attorney
General's Office for collection if the responsible party failed to pay the penalty.
The Air Program will follow HPV guidance and state rule 10 CSR 10-6.230 "Administrative
Penalties" in regards to the use of an economic benefit penalty where appropriate. In addition,
the Air Program has amended its penalty policy and worksheet which includes both gravity and
economic benefit components, and will submit a copy of it within 60 days of completion of the
SRF Final Report. The SOPs discussed above will include the requirement to file appropriate
documentation indicating payment of the penalty, including a copy of the check with the routing
number and account number redacted, or other appropriate documentation.
EPA RESPONSE TO STATE COMMENTS: EPA transmitted the facility file selection list to
MDNR on May 20, 2019, including the files reviewed for penalty assessment and collection.
The Air Program will follow HPV guidance and state rule 10 CSR 10-6.230 "Administrative
Penalties " in regards to the use of an economic benefit penalty where appropriate. In addition,
the Air Program has amended its penalty policy and worksheet which includes both gravity and
Page 31 of 65
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economic benefit components, and will submit a copy of it within 60 days of completion of the
SRF Final Report. The SOPs discussed above will include the requirement to file appropriate
documentation indicating payment of the penalty, including a copy of the check with the routing
number and account number redacted, or other appropriate documentation.
Noted. These activities are aligned with the corrective actions outlined in the draft SRF report
and will be evaluated in accordance with the criteria listed in the final report for close-out of
each recommendation. We look forward to reviewing the progress MDNR has made following
issuance of the final report.
Recommendation:
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Recommendation
EPA recommends MDNR continue efforts to finalize a penalty policy
and develop a standardized penalty calculation worksheet within 90
days of completion of this report, which ensures:
Documentation of gravity and economic benefit components;
and
Documentation of penalties collected.
This recommendation will be deemed complete upon MDNR
implementation of a formal penalty policy, as demonstrated by formal
documented use in MDNR case resolution negotiations. At the end of
FY20, EPA will review a selection of MDNR files with penalties, and
if the sampling indicates achievement of 85% of the relevant data
metrics during the annual data metric analysis for FY2020, EPA will
close this recommendation. If the FY20 data pull does not achieve this
accuracy level, EPA will review data from subsequent years until the
threshold is met.
CAA Element 5 - Penalties
Finding 5-2
Area for Attention
Summary:
Documentation of the difference between initial penalty calculation and final penalty was present
and followed policy in most but not all files.
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Explanation:
MDNR files did contain documentation for 4 of the 5 facilities reviewed for the documentation of
rationale for difference between initial penalty calculation and final penalty. EPA suggests MDNR
incorporate language regarding this element into its penalty policy for consistency and to meet the
national metric goal.
Relevant metrics:
12a Documentation of rationale for difference
[
between initial penalty calculation and final
100%
4
5
80%
penalty [GOAL]
State Response: The Air Program is revising procedures to document the rationale for
differences between the initial penalty calculation and final penalty calculation. We will include
this requirement in our penalty policy and worksheet, which we will submit to EPA within 60
days of completion of the SRF Final Report.
EPA RESPONSE TO STATE COMMENTS: Noted. These activities are aligned with the
corrective actions outlined in the draft SRF report and will be evaluated in accordance with the
criteria listed in the final report for close-out of each recommendation. We look forward to
reviewing the progress MDNR has made following issuance of the final report.
MDNR Conclusion: We appreciate EPA's consideration of our responses. We want to stress
again that Air Program staff and the Department's regional office inspectors effectively
evaluated compliance, documented violations, and worked with facilities to correct violations
during the time period reviewed, and continue to do so.
We appreciate MDNRs thoughtful responses to the draft SRF report. We place a high value on
our continued strong partnership and mutual commitment to open communication as we work
together toward resolution of the issues identified during the Round 4 SRF review process. We
are confident the path outlined in the final report will strengthen our mutual efforts of protection
of human health and the environment.
Page 33 of 65
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Appendix 1
Missouri Department of Natural Resources' Response Letter
OJ Missouri Department of dnr.mo gov
NATURAL RESOURCES
Michael L Parson, Governor
Carol S, Comer, Director
May 7. 2020
David Cozad. Director
Enforcement and Compliance Division
U.S. EPA Region 7
11201 Rentier Boulevard
Lenexa. ES 66219
RE: State Review Framework, FFY2018
Clean Air Act
Draft Report Response
Dear David Cozad:
The Missouri Department of Natural Resources' Air Pollution Control Program (Air Program) received
the draft report of the U.S. Environmental Protection Agency's (EPA) review of Missouri's Clean Air
Act (CAA) enforcement program for Federal Fiscal Year (FFY) 2018. Tins letter contains our response
to the findings in the draft report. We appreciate EPA's consideration in allowing us the opportunity to
respond to the draft report before issuance of the final report.
The draft report notes some areas of strong performance, and it also notes some priority areas for
improvement The areas of strong performance include:
Our review of Title V annual certification reports, and
« Our documentation of foil compliance evaluation elements in inspection reports.
Areas identified for improvement largely include:
Timeliness and accuracy of data reported to ICIS-Air.
* Classification of violations as Federally Reportable Violations (FRVs) or High Priority
Violations (HPVs'i. and
* Timely resolution of these violations.
General Response:
1. The report's findings regarding areas for improvement during the tune period reviewed are
largely the result of reporting and file documentation deficiencies: rather than any failure to
evaluate compliance, document violations, or work with facilities to correct violations. We
acknowledge that adequate and timely documentation and reporting of our compliance work is
an essential function of state implementation of the CAA. However, as our detailed responses
below will show the program effectively evaluated compliance, documented violations, and
Page 34 of 65
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David Cozad
Page Two
worked with facilities to correct violations during the time period reviewed, and continues to do
so
2. It is also important to note that our Air Program had already identified and begun to address
many of the reporting lapses in the fall of 20IS. prior to the beginning of EPA's State Review
Framework (SRF) review in June 2019. However, the Program had not made retroactive changes
to our files. Therefore our reporting improvements were not reflected in your FFY201S renew.
The Program completed the final data check for FFY2019 data prior to the data freeze, and we
believe FFY2QI9 will show significant improvement in the accuracy and completeness of the
data. Specifics regarding our corrective actions are detailed below.
3. Finally, we note that the EPA's FFY201S review caught the Department m the middle of a
significant transition that impacted our data entry and data management. The Air Program was
adjusting its compliance resolution strategy just prior to the beginning of FFY201S . Many issues
that would have previously been referred to the Air Program for enforcement action are now
being resolved by our regional offices through a robust compliance assistance program.
Detailed Response to Findings:
Finding 1-1
Area for Improvement. Data Metric 2b - Files reviewed where data are accurately reflected in the
national data system.
Summary:
The review exposed inaccuracies in data in the Integrated Compliance Information System (ICIS j ICTb>-
Air database as compared to Air Program facility tiles. The review also revealed missing Minimum Data
Requirements (MDRs).
Response:
The Air Program acknowledges the importance of accuracy and minimizing discrepancies in our data
The Program had identified these issues and had implemented corrective action, but had not made
retroactive changes to our files by the time EPA began its review. We continue to review our current
ICIS-Air data entry procedures and evaluate the accuracy of data entry and our films procedures. The
Program will document modifications to our procedures in revised Standard Operating Procedures
(SOPs), and provide those to EPA within 60 days of completion of the SRF Final Report.
We also request that EPA provide detail on the specific files where discrepancies were noted so that we
can ensure the official records are complete.
Finding 1-2:
Area for Improvement. Data metrics 3a2 - Timely reporting ofHPV determinations, 3b 1 - Timely
reporting of compliance monitoring MDRs. 3b2 - Timely reporting of stack test dates and results, and
3b3 - Timely reporting of enforcement MDRs.
Page 35 of 65
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David Cozad
Page Three
Summary:
Timely reporting of HPV determinations; compliance monitoring MDRs; slack test dates and results:
and enforcement MDRs are all below the national goal and national averages.
Response:
We acknowledge that adequate and timely reporting of our work is an essential function. We have begun
immediate corrective actions to ensure that previous data is uploaded to ICIS-Air and future reporting is
complete and timely. Specifically:
1. Our procedures now require that staff provide data to the ICIS-Air data steward in a timely
fashion, a minimum of twice per month.
2. It is now policy that the data steward and supervisory staff renew and compare our records to
the Enforcement and Compliance History Online (ECHO) database on a monthly basis, and
coordinate with EPA staff to verify that the data uploaded to ICIS-Air is accurate and complete.
3. Staff are all trained in the HPV and FRY policies.
While EPA lias acknowledged improvements in the Program's EFY2019 data, we continue to review
our current procedures, train staff, and evaluate our coordination and communication practices to ensure
relevant data is timely provided to our staff members that are responsible for ICIS-Air data entry We
are also evaluating current workloads and considering a realignment of duties to' ensure data entry is
prioritized.
We will document modifications to our procedures and include them in new SOPs. which we will
provide to EPA within 60 days of completion of the SRF Final Report.
Finding 2-1
Area for Improvement. Data metrics 5a - Full compliance evaluation (FCE) coverage: majors and mega-
sites and 5b - FCE coverage: SM-SOs. I'Note: SM-SOs are synthetic minor sources that enut or have the
potential to emit at or above SO0© of the Title Y maior source threshold).
Summa'T:
Missouri Department of Natural Resources FCE coverage of majors, mega-sites, and SM-SOs is below
the national goal and national averages.
Response;
Air Program staff reviewed internal databases and compared it to information located in the ECHO
database for FFY201S. We found a number of discrepancies specific to major sources, mega-sites. and
SM-SOs listed within the databases that had gone out of business or were otherwise not part of this
Page 36 of 65
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David Cozad
Page Four
source category. In addition, we found discrepancies with the number of inspections conducted m this
source category. As a result of this review and the discrepancies we identified, the Air Program believes
fliis finding is a data integrity issue.
The Air Program respectfully requests that EPA staff re-run the data for the FFY2G1S period to verity
corrections to the number of active facilities in this class and corrections to the number of facilities
inspected in tins class. We believe updates to the database will show a marked improvement in this
metric. Furthermore, if the data reveals that this issue lias been resolved by our agency without
additional oversight, we request that EPA consider reclassifying this issue as an "area for attention."
Import ant ly. the Air Program has initiated steps to ensure data in ECHO and ICIS-Air is accurately
represented going forward In March 2020. Program staff compared FFY2019 and later data regarding
these classes of facilities to data in the ECHO database and made necessary updates. Air Program staff
will discuss this area as necessary during coordination calls with EPA Region 7 staff and we will
document modifications to our procedures and include these modifications in new SOPs. which we will
provide to EPA within 80 days of completion of the SRF Final Report.
The Air Program is also working with EPA Region 7 staff to identify took the Department's regional
office staff can utilize for inspection planning purposes - specifically information relating to the date of
last inspection for this class of facilities in the ECHO database. We will develop SOPs specific to
inspection planning to include utilization of the tools and data available in ECHO. Due to the tune it
may take to work with Region 7 staff to identify the specific tools, coordinate the use of these tools with
our five regional offices, and to draft SOPs for our five regional offices, the Air Program requests a
deadline to submit these specific SOPs to EPA within 120 days of completion of the SRF Final Report.
Finding 2-2;
Meets or Exceeds Expectations.. Data metric 5e - Reviews of Title V moral compliance certifications
completed
Summary;
The Air Program's review of Title V annual certifications is exemplary.
Response:
The Air Program appreciates EPA's acknowledgement of oar success under tins element.
Finding 2-3;
Meets or Exceeds Expectations. Data metrics 6a - Documentation of FCE elements and 6b - Compliance
monitoring reports iCMRs I or facility files reviewed that provide sufficient documentation fo determine
compliance of the facility.
Page 37 of 65
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David Cozad
Page Five
Summary:
The Department of Natural Resources' documentation of FCE elements in inspection reports as well as
documentation to detenu in e compliance meets expectations.
Response:
The Air Program appreciates EPA s acknowledgement of our success under this element.
Finding 3-1
Area for Improvement. Data metrics 13 - Timeliness of HPY identification. 7a - accurate compliance
determinations. 7al - FRY "discovery rate' based upon inspections at compliance monitoring strategy
(CMS) sources. 8a - HPV discovery rate at majors, and Sc - accuracy of HPY determinations.
Summary;
Where documentation was present to review, the Air Program did not demonstrate proficiency with
accurate FRV and HPV compliance determinations
The Air Program uses separate tracking databases to track these violations even though they are required
elements of the national tracking system.
The Department of Natural Resources created a unique category of compliance determination.
Response:
First, the Department believes that tins finding does not reflect any failure by the Air Program to
evaluate compliance, document violations, or work with facilities to correct violations during the time
period evaluated. In support, we are attaching reports to illustrate the successful efforts by the Air
Program to address FRYs through compliance assistance and through referrals and orders during FFY17
and FFY18
The Air Program nevertheless acknowledges the importance of appropriately classifying violations as
FRV and or HPY. and we have begun immediate corrective actions to ensure the appropriate
classification of all violations. Specifically:
1. Our procedures now require that staff identify compliance issues as FRYs and HP Vs. if the
issues fall into these categories of violation, in inspection reports and correspondence sent to
facilities to ensure proper documentation of the violations,
2. Supervisors and managers must review documentation of compliance issues to ensure staff
determinations are accurate and follow the FRY and HPV policies.
3. Staff are trained regarding proper compliance evaluation determinations
Page 38 of 65
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David Cozad
Page Six
4. Staff are trained in the HPV and FRV policies, including the requirement to notify facilities of
HPVs within 45 days of discovery.
The Air Program conducted individual training on FRV and HPV policies with all relevant staff
members. In addition, the Program is developing training materials to present to all compliance and
enforcement staff, including regional office inspectors, during a scheduled training event tins coining
June.
EPA further expressed concern about the Air Program's use of separate databases to track violations.
The databases that the Air Program use are important communication tools between the Air Program,
the Department's Regional Offices, and other programs within the Division of Environmental Quality.
They allow program and regional staff to view compliance and enforcement data across the programs
and across the state. In addition, the Air Program uses these internal databases to generate reports
regarding inspection and enforcement activities to share with the public, stakeholders, and the Missouri
Air Conservation Commission. EPA's ECHO and ICIS-Air databases do not have the tools we need to
fulfill these functions and are not broadly available to Department staff. While having duplicate
databases may be seen as inefficient the important outcome here is thai the correct information is
entered mto EPA s national tracking system. We are committed to ensuring that all relevant information
is properly submitted by the Air Program.
Finally. EPA noted th.it the Department is using a unique category of compliance in the Air Program.
While we understand EPA s concern with national consistency, the Department believes that the use of
"unsatisfactory finding"" letters is consistent with EPA s September 2014 memorandum regarding
Guidance on Fed era !h -Reportable Isolations for Chan Air Act Sfaiio"an Sources, In that
memorandum. EPA details that formal notice of a FRV or potential FRV to a source may be provided m
a. variety of ways::
For example, such formal notice may be a Notice of Violation (NOV). Notice to Coirect (NTC).
Notice of Opportunity to Correct (NOC). Notice to Comply (NTC). or Notice of Noncompliance
(NGN). Regardless of the name of the formal notice of violation, if the purpose of the formal
notice is to notify a source of an FRV. it is to be reported to ICIS-Air. (Emphasis added).
As the attached policy excerpt shows, the use of an "unsatisfactory finding"" letter is to formally notify a
source of a compliance issue and the requirement to take necessary action to resolve the compliance
issue. Therefore, we believe that issuing a notice of "unsatisfactory finding" and reporting these letters
to ICIS-Air achieves the desired outcome of formally notifying a source of a FRV or potential FRV.
Finding 4-1:
Area for Improvement. Data metrics 10a - Timeliness of addressing HPVs or alternatively having a case
development and resolution timeline m place. 10b - Percent of HPVs that have been addressed or
removed consistent with the HPV Policy. 14 - HPV case development and resolution timeline in place
Page 39 of 65
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David Cozacf
Page Seven
when required that contains required policy elements, and 9a - Formal enforcement responses that
include required corrective action that will return the facility to compliance m a specified tune frame or
the facility fixed the problem without a compliance schedule.
Si:mma?y;
The Air Program does not meet the objectives of the HPY policy 111 terms of enforcement responses,
compliance schedules, timeliness, and return to compliance.
Response-
Without knowing in which files EPA found deficiencies, it is impossible for the state to respond
specifically as to the accuracy of this finding. There may be cases in winch the violation was resolved
through a non-formal process that did not require case development or a resolution timeline. In other
cases, those mechanisms may have been developed but, consistent with past practice, were not
documented in the paper file. In order to provide a thorough response, it is necessary to know which
files EPA reviewed.
Further, the report notes with regard to metrics 10B and 14 that "the low sample population size of HPV
facilities reviewed from multiple previous years does not offer a reliable picture of the state's
performance and success." The report also notes that "the relatively small sample size diminishes the
confidence in these results." Given these limitations, the Department requests that EPA withdraw these
findings from the final report or provide a determination of "Inconclusive."" rather than have the record
reflect a performance result that is not well-documented.
The Department also requests thai the sample size used for metrics 10b and 9a be re-considered in the
same light.
The Department nevertheless recognizes the importance of addressing and> or removing HPYs.
consistent with EPA's HPV policy, and ensuring that these efforts are documented. We have begun
immediate corrective actions. Specifically:
1. Procedures now require staff to develop a resolution time frame for cases that may take more
than ISO days to resolve, and share that with the Compliance and Enforcement Section Chief.
2. Procedures now require the Compliance and Enforcement Section Chief share a resolution time
frame with appropriate EPA staff for any cases that may take more than ISO days to resolve
3. Procedures now require HPYs to be addressed or removed consistent with the HPV policy.
4. Staff are trained regarding formal enforcement responses that include required corrective actions
that will return the facility to compliance in a specified time frame
5. Staff are trained regarding timely HPV case development and resolution.
6. Procedures now require staff to identify compliance issues noted 111 inspection reports and
correspondence to facilities as FRYs and HPYs. if the issues fall into these categories of
violation, to ensure proper documentation of the issues.
Page 40 of 65
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David Cozad
Page Eight
7. Procedures now require supervisors, and managers to review documentation of compliance issues
to ensure staff determinations are accurate and follow the FRY and HPV policies.
8. The Air Program is developing training material to present to Compliance and Enforcement staff
including regional office inspectors, during a scheduled training event in June 2020.
Again, the Department believes that this finding does not reflect any failure by the Air Program to
evaluate compliance, document violations, or ivork with facilities to correct violations, regardless of
FRY or HPY status, during the time period evaluated. The four attached reports illustrate the successful
efforts by the Department during FFY2017 and FFY201S to address FKYs through compliance
assistance and through referrals and orders.
The Air Program will document updated processes regarding this issue and include them in SOPs. which
we will provide to EPA Region 7 within 60 days of completion of the SRF Final Report. The submittal
will also contain a detailed description of the tracking system we use for HPV enforcement cases. Air
Program staff will discuss the progress of HPY enforcement cases, including any foreseeable delays in
case development and resolution of cases, during coordination calls with EPA Region 7 staff
Finding 5-1.
Area for Improvement. Data metrics 1 la - Penalty calculations reviewed that document gravity and
economic benefit and 12b - Penalties collected
Summary:
Penalty calculation documentation did not account for economic benefit. Some files did not mclude
documentation that penalties were collected.
Response:
Without knowing in which files EPA found deficiencies, we cannot provide a detailed response. We
request additional information on the specific files regarding missing penalty documentation so we can
ensure the official records are complete. While some of the files that EPA reviewed apparently did not
include documentation that penalties were collected, the Department did m fact collect all penalties
assessed, or referred cases to the Attorney General" s Office for collection if the responsible party failed
to pay the penalty.
The Air Program will follow HPV guidance and state rule 10 CSR 10-6.230 "Administrative Penalties'"
in regards to the use of an economic benefit penalty where appropriate. In addition, the Air Program has
amended its penalty policy and worksheet which includes both gravity and economic benefit
components, and will submit a copy of it within 60 days of completion of the SRF Final Report. Hie
SOPs discussed above will mclude the requirement to file appropriate documentation indicating
payment of the penalty, including a copy of the check with the routing number and account number
redacted, or other appropriate documentation.
Page 41 of 65
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David C'ozad
Page Nme
Finding 5-2:
Area for Attention. Data metric 12a - Documentation of rationale for difference between initial penalty
calculation and final penalty.
Summary:
Documentation, of the difference between initial penalty calculation and final penalty was present and
followed policy in most but not all files
Response:
The Air Program is revising procedures to document the rationale for differences between the initial
penalty calculation and final penalty calculation. We will include this requirement in our penalty policy
and worksheet, which we will submit to EPA witlim 60 days of completion of the SRF Final Report.
Conclusion
We appreciate EPA's consideration of oar responses. We want to stress again that Air Program staff and
the Department's regional office inspectors effectively evaluated compliance, documented violations,
and worked with facilities to correct violations during the time period reviewed, and continue to do so
We look forward to farther discussions regarding the draft report prior to EPA's issuance of the final
report. Please contact Mr. Richard Swartz of my staff with any questions or to schedule any meetings.
Mr. Swartz can be reached at the Air Pollution Control Program, P.O. Box 176. Jefferson City. MO
65102-0176, by telephone at (573) 751-4817. or by email at richar d.swartzdnr.mo.gov.
Sincerely,
AH POLLUTION CONTROL PROGRAM
Darcy A. Bybee
Director
DAB/rs
Enclosure
c: Ed Galbraith. Director. Division of Environmental Quality
Kvra Moore, Deputy Director. Division of Environmental Quality
Deanna Boland. Division of Environmental Quality
Amanda Sifford. Division of Administrative Support Program
Page 42 of 65
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Missouri Department of Natural Resources
Div ision of Environmental Quality
Vnsatisfactory Finding Compliance Determinations & Letters
Unsatisfactory Findings
These are Group 5 Violations, which consist of noncompliance issues that are less serious and
usually will not, on their own, lead to enforcement action, The noncompliance issues are
documented with required actions and lecommendatious. if applicable. A leport describing the
Unsatisfactory Findings and the required actions will be provided to the entity, A response will
be requii ed from the entity The entity will continue to be in noncompliance until the required
actions are addressed Group 3 Violations will usually be reevaluated dining the next inspection
or investigation and additional enforcement action will be taken if deemed appropriate at that
time
The list of Group 3 Violations follows:
Group 2 Violations that are self-reported or conected during the inspection or within one
week thereafter sand before the report is issued!
Violations being addressed through a prior approved schedule of action! s) provided the
entity is in compliance with the approved agreement,
Minor violations such as-
Recordkeeping not current (within 5 days;,
Re cordkeeping unavailable dining the inspection but provided upon request
within one week.
Minimal dust,
Open burning or less than 64 cubic feet \Z cubic yards) waste materials with
limited human health and off-site environmental impacts,
Failure to provide asbestos contractor registration certificate or worker certificate
if currently registered-certified.
Asbestos issues (signs, timing, etc ) that do not hove a direct impact on human
health or the environment,
Page 43 of 65
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Missouri Department ©f Natural Resources - Air Pollution Control Program
Letters of Warning and Notices of Violation issued Between October 1, 2017 and September 30, 2018
INSPECTIONJD FACILITY_NAME CITY TYPE_DESCRlPTION DATE
AP: Inspection: Intermediate
ACEINS128926
OVID BELL PRESS INC FULTON
FULTON
Inspection Date
Report Date
Unsatisfactory Fnrl ngs
Return to Cumj/ianre
* '2V2C 'D
J 1^20 J
2 |h20,j
2 !^20 y
ACEIN^ -11346
HERMANN OAK LEATHER CO
ST. LOUIS
Inspection Date
Renort Dite
Letter of Warding
Return to Compliance
^ 2 ' 20 ?
r» 2 2^ P
c 2 20
F< <2*20'#
ACE1N5134833
ITW LABELS FORMERLY DIAGRAPH LABELING
ST. CHARLES
Inspection Date
Report Date
Letter of Waning
Return to Compliance
5/21/2018
1 1 21 ^
^ 13 2i 0
8/20/2018
AP: Inspection: Part 70
ACEINS !2479t
MONROE CITY POWER PLANT
MONROE CITY
Infection Di?e
Re K
-------
Missouri Department of Natural Resources - Air Pollution Control Program
Letters of Warning and Notices of Violation Issued Between October 1» 2017 and September 30,2011
INSPECTIONJD FACfUTY_NAME CITY TYPE_DESCRIPTiON DATE
Ai EiN>!2M
ST JOSEPH SANITARY LANDFiLL(2)
ST. JOSEPH
Inspection Date
Repel Date
Unsatisfactory FtrnJ-ngs
Return to Compliance
3/15/2018
3/15/2018
3/15/2018
ACEINS130762
CONTINENTAL CEMENT COMPANY LLC GREEN AME
HANNIBAL
Inspection Date
Report Date
Unsatisfactory Findings
2 IS 2Uk
3/28/2018
3/28/2018
ACEINS131381
ABLE MANUFACTURING & ASSEMBLY LL C. - S
JOPLIN
Inspection Date
Report Date
Letter of \VarPinq
Return to Compliance
^ 7 2C 1 a
4 ^4 20 <_
4 .4 20 a
F-4 2C'°
ACEINS132215
ALLEN INDUSTRIES LLC (EDWARDS FRP TANK &
SEDALIA
Inspection Date
Report Date
Unsatisfactory Findings
Return to Comp.iance
4 in jo m
F 14 *
c 14 2nr8
ACEINS13774Q
KCPL HAWTHORNE STATION
KANSAS CITY
fnspecticn Date
Report Date
Letter nf Warning
Return to Comp'iance
i
9/19/2018
s I 2u H
11/29/2018
AP: Investigation: intermediate
ACEINS134561
MWT BULK SERVICES, LLC
KANSAS CITY
Inspection Date
Report Date
Letter of Warning
Return to Compliance
G > 20 8
7 ^ 2C H
7 c S 1«
10
Information Retre'ved at 9:40 am on March 18, 2020
Page 45 of 65
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Missouri Department of Natural Resources - Air Pollution Control Program
Letters of Warning and Notices of Violation Issued Between October 1, 2018 and September 30, 2017
INSPECTIONJD
FACILiTY_NAME
CITY
TYPE_DESCRIPTiON
DATE
AP: Inspection: Intermediate
ACEINS 116167
SAP HOLLAND
WARRENTON
In section Dite
Report Dit"
Letter cf W^iny
Pek rn to impinnce
3/3/2017
4 r 20!
ACEINS 116731
OVID BELL PRESS INC FULTON
FULTON
lnsf."Cti"n Date
Repot Date
Letter i «f Wj nny
Reti m tu <"\)mp 7
6/15/2017
9/6/2018
ACEINS120072
BUTLER MUNICIPAL POWER PLANT
BUTLER
Inspection Dafe
Report D ite
Letter of \\\rna j
Return to f omphance
: t> jt»i7
6/20/2017
6/20/2017
7 24 2> * 7
ACEINS 122003
UNILEVER BEST FOODS N. AMERICA (UPTON T
INDEPENDENCE
Infection Datp
Return to Lu'nph mce
Rep «t Date
Letter i t Wvmj
6/26/2017
7/5/2017
8/17/2017
8/17/2017
ACEINS 122183
KG AIRPORT - KCMO AVIATION DEPT - KG IA
KANSAS CITY
Inspection Dite
Report Date
Letter of Warning
Return to Compliance
Pr 20.1017
2Ui7
8/22/2017
y 2^ 2017
ACEINS 22940
AYERS OIL COMPANY
CANTON
Inspection Date
Report Date
Unsatisfactory Findings
Return to Compliance
7 2^ _0T7
3 J J S \1
3 2
3 21'2017
ACEINS 122968
HUEBERT FIBERBOARD INC BOONVILLE
BOONVILLE
Inspection Date
Report Date
. ~ J)»7
Information Retreived at 9:40 am on March In AJU
Page 46 of 65
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Missouri Department of Natural Resources - Air Pollution Control Program
Letters of Warning and Notices of Violation Issued Between October 1, 2016 and September 30, 201?
INSPECTIONJD FACILITY_NAME CITY TYPE_DESCRIPTlON DATE
Letter of Warning
Return to Compliance
9/7/2017
10/10/2017
ACEINS123138
KAHOKA ELECTRIC GENERATING PLANT
KAHOKA
Inspection Dite
Re o*t D ste
LrtM ot Wiping
P^tprn to <\t npiiance
* 2 2^ 7
M 1 Mf> t
<> P20 7
in 2, ^ 7
AP: Inspection; Part 70
ACE1NS11T128
REMINGTON ARMS COMPANY
LEXINGTON
Inspection Date
Report Date
Letter of Waging
Referral Notice of Violation
7/28/2016
9/30/2018
9/30/2016
ii^,~2U ,h
ACEINS111868
CENTRAL MISSOURI SANITARY LANDFILL
SEDALIA
Inspection Dote
Resort Date
Referral Notice ot Violation
Enforcement Action Request
Notice of Violat :>n
M lf*2l r
1U 21 r
10/21/2016
10/21/2016
10 21 JO'r
ACEINS113827
BLUESCGPE BUILDINGS NA, INC. - ST. JOSEP
ST. JOSEPH
Inspection C itt-
Repo'l D te
Letter uf ^'.i.nng
Return tuf ompiiance
l2t ..016
12 I <2018
12 11t 2016
2 I* 2017
ACEINS114923
FULTON MUNICIPAL UTILITIES
FULTON
Inspection Cite
Re >ort Dite
Letter of Waging
Return to Compliance
12 2"1 20 t
tP 7
ii P 2u 7
2 2^ J3 *T
ACE1NS115406
MONROE CITY POWER PLANT
MONROE CITY
Inspection Date
Report Date
Letter of Warning
Return to Compliance
12^1 20 fi
1 2f 20 7
i 20 20*7
ACEINS116294
CONTINENTAL CEMENT COMPANY LLC GREEN AME
HANNIBAL
Inspection Date
Report Date
1/12/2017
3/2/2017
Information Retreived at 9:40 am on March 16, 2020
Page 47 of 65
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Missouri Department of Natural Resources - Air Pollution Control Program
Letters of Warning and Notices of Violation Issued Between October 1, 2016 and September 30, 201?
INSPECTiONJD
FACILITY_NAME
CITY
TYPEJDESCRlPTiON
DATE
Letter of Wanting
Return to Compliance
3/2/2017
3/14/2017
ACEINS118525
DUDLEY'S TREE AND STUMP
CARTERVILLE
fn portion Ddte
Reuvt Dite
Referral Notice of Violation
4 24 2l>t7
*> i120'7
5 P 2C«7
ACEINS119840
EAGLE RIDGE SLF
BOWLING GREEN
Inspection D ite
Rep^ rt Date
Letter of V\ mi ig
Return te Compliance
5. 17 20 17
nn2^i7
f 2^ 17
a jr 2017
Information Retreived at 9:40 am on March 16, 2020
Page 48 of 65
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"MISSOURI
P?1 DEPARTMENT OF
IlkJI NATURAL RESOURCES
Air Pollution Control Program
Finalized Agreements between October 01, 2017 and September 30,
Responsible Party
Facility
Negotiation
Initiated
Settled
2018
Total Suspended
Amount Amount Region
Asbestos
Advanced Environmental
City of Pilot Grove Oeniolitkx
Project
£."8,'2017
£.'15/20'8
2000
1500
NERO
City of Sarcoxie
Old Service Station
9/: SCO 17
6/6/20! 8
4000
4000
SWRO
Dale Wands
Dale Wands Duplex
11/'3/2017
12/26/2017
4000
0
SERO
Apartments and a House
3800 Hampton Reovaion
Garcia Holdings 111, LLC
11/1/2017
6/26/2018
6000
4500
5_RO
Construction Permit
Mark Barnes
For Your Convenience {Prod
Operations)
11,3/2017
7,'19/2018
4000
3000
SERO
Excess Emissions
Joe LaBarge
Northstar Battery
3,' If 20 17
3/16/20! 8
4625
0
SWRO
Fugitive Dust
John Papa
Ozark Hardwood Pellets
3/15/2018
3/1412018
8850
6638
SWRO
Open Burning
Brian Matt
Royal Oak Charcoal
2/1 CO 17
12/26/20 >7
8000
8000
SERO
Glenn Craig Thru mo n Sr.
Glenn Graig Thurmon Sr
1>F/20 17
8/15/20! 8
2000
2000
SERO
Randy Ray
Randy Ray
11 .'*4/2017
5/17/20! 8
2000
1500
SWRO
Richard Wayne Moore
RM Pallet
6,'1/20 17
12/26/20f 7
3890
2890
SWRO
Rick Metcaif
Woody's Express Topsoi
and Trucking
12'ICO 17
6/13*20'8
2000
1500
SWRO
Roy Bnnkoetter
Big Iron Town
3/"0/2016
12/15/2017
2:000
1500
KCRO
Water Cine
Walter Cine
10/'7/2015
12C6''2017
2000
1500
NERO
Wilard Barry
LG Barcus & Sons
11/29/2017
El 15/20 '8
2000
1500
SWRO
Reid Vapor Pressure (RVP)
Asif Sarfani
Blue Ridge Food Stop
400/2017
5/1/2018
1000
500
KCRO
Stage I Vapor Recovery
Mohammad Almuttan (Station J
Phillips 66 ST 10652
5,'2/2017
5/24*2018
SLRO
Phil Parker - Parker Petroleum
Crown Mart#!?
12? 1/2017
1500
1000
S_RO
Page 1 of 1
Saturday, March 14, 2020
Page 49 of 65
-------
/w\
-** MISSOURI
BnBr^l olP'Xrimuni of-
WMmA NATURAL RESOURCES
Air Pollution Control Program
Finalized Agreements between October 01, 2016 and September 30, 2017
Negotiation
Total
Suspended
Responsible Party
Facility
Initiated
Settled
Amount
Amount
Region
Asbestos
City of Leadwood
Former Caroline's Auto Parts
11/7/20; 6
4000
4000
SERQ
Dennis Vandevender
City of Trenton
9/16/2016
2/24/20' 7
4000
4000
NERO
Lyie Best
Osage R 1 School
8/9/2016
1/12.20:7
1000
3000
NERO
Hike McNeamey
MSD demos: former
residences at 1017 & 1013
Tllie
4/26(2016
1/3/20 *7
2000
1500
SLRO
Construction Permit
Jay MuBer
Kansas City Wlbert Vault
11/17/2016
4000
2000
KCRO
Jeff Goodwin
Complete Horns Concepts
2Q5I2Q18
12/6/20 S 6
8000
6000
KCRO
John White
ZOLTEK
8/15/20'7
25875
0
SLRO
Jon Mel ham
Northland Coating: Solutions
3/111*2016
9/11/20(7
2000
2000
KCRO
Mary Walking
White Rock Quarries
6/13/2012
11/23/20; 6
0
0
SLRO
Rick Meeker
Polymeric U.S., Inc.
4/1 .'2016
5/5/2017
2.000
1500
KCRO
Emissions Inventory Questionnaire
Edward Potter
White Rock Quarries
11/23/2016
13586
12000
SLRO
Inspection/Maintenance - Fraud
Mr. Woodrow Jones, Sr.
360 Brake Service (GVIP
#i I5A44S
' 1/26/201 3
2/10/20; 7
50000
45000
SLRO
Open Burning
Chuck Frank
Dooittle Trailers
6/8/2016
2/16/20:7
6000
4500
NERO
Ryan Werdehausen
Dooiittle Trailers
6/8/2016
11/1/2016
2000
2000
NERO
Steven Shott
Steven Shott
8/2/2016
1/19/20 i7
2000
1500
NERO
Zakhariy Izoia
Midwest Trans LLC
5/25/2016
11/7/2016
4000
3000
KCRO
Part' 70 Operating Permit
Chad Dykes
TEVA Pharmaceuticals USA
9/23/2015
3123/20 "7
2000
2000
NERO
John Burns
Missouri Center for Waste to
Energy
8/21/2015
9/7/2017
6000
4000
KCRO
Hrr Bae-r
TG Missouri
3/3/2016
11/10/20 f 6
2000
1500
SERO
Stage I Vapor Recovery
Alpha Petroleum
Ever/day Conoco ST 13520
12/14/20; 6
KCRO
Alpha Petroleum
Eve^vdav Store # 1090
ST36I3"
12/14/20:6
KCRO
Javaid B Chaudhri, AJ Partnership
Everyday' Conoco
4/18/2013
12/14/2016
KCRO
iavaid B. Chaudhri & Arshad
Evervda»' Store# 1090
4/18/2013
12/14/2016
KCRO
Chaudhri
syi.iu
Page f of 2
Monday, March 16, 2020
Page 50 of 65
-------
MISSOURI
Dfc PART ML Nil OF
natural resources
Air Pollution Control Program
Finalized Agreements between October 01, 2016 and September 30, 2017
Negotiation
Total
Suspended
Responsioie Party
Facility
Initated
Sett'ed
Amount
Amount
Region
Javaid B. Chaudhri & Arshad
Sine !a-r Retail Station
4; i 8/2013
12.' 14/2016
KCRO
Chaudhri
»24C6G ST 12977
Javaid 0.. Chaudhri, Premier
Service Oil Company w 12
4; 18/2013
12/14/2018
KCRO
Petroleum
javaid B Chaudhri, Premier
Inne, City Oil
4/18/2013
12i 14/20 lb
31000
20O00
KCRO
Petroleum
Mr. Mike Said
Crown Wa
-------
Appendix 2
EPA Response to Missouri Department of Natural Resources' Comments
EPA Region 7 appreciates MDNR's responses to the draft SRF report. We recognize MDNR's
clear commitment to process improvements, as demonstrated by the various immediate
procedural enhancements, planned and implemented, to address the gravity of the findings. The
responses and supplemental information were carefully considered in the context of the review
framework. The input proved valuable in completing the report and finalizing the
recommendations, which are designed to build a stronger partnership through our mutual work.
As discussed throughout the process, the SRF is a transparent, informed evaluation of the
elements comprising MDNR's CAA stationary source compliance and enforcement program.
These elements include: Data (completeness, timeliness and quality); Inspections (coverage and
quality); Identification of violations and enforcement actions (appropriateness and timeliness);
and Penalties (calculation, assessment and collection). In reviewing these program elements EPA
strives for a comprehensive understanding of program processes and issues. The report identifies
actions to address areas for improvement.
In order to conduct a review of each of program element, EPA limits the review period to a finite
period of time (Round 4-2018 federal fiscal year (FFY) data). We use these frozen data and
corresponding file documents to gain a comprehensive understanding of the state program. Data
clean-up, confirmation, and amendments (if applicable) are requested during the data verification
period set by EPA in advance of the review. There is no expectation of correction of the data (or
files) mid-review. By design, EPA works to understand the program holistically, through the
frozen data, as a means of strengthening program procedures in the future.
EPA places a critical emphasis on our role in ensuring adherence to national guidance and
expectations for enforcement decisions and transparency in the information available for all
communities in Missouri. Final SRF Reports are designed to provide factual information in order
to facilitate program improvement. EPA will track recommended actions from the review in the
SRF Manager database. Reports and recommendations will be published on EPA's ECHO web
site.
Region 7 CAA technical staff would like to commend the efforts of MDNR's technical staff in
preparing for and assisting with the review. We appreciate the time expended in hosting our
staff, providing data, and helping us to better understand MDNR's program elements. The efforts
of your staff demonstrate a commitment to implementing the delegated CAA program in the
state, along with a commitment to working to resolve the findings of the SRF final report.
As a means of addressing EPA's responses to MDNRs comments on the SRF draft report, the
following typeface style conventions will be used to specify the agency attribution:
EPA Draft SRF Report Finding
MDNR Comment on the draft SRF Report
EPA Response to MDNR comments
Page 52 of 65
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GENERAL COMMENTS
MDNR General Comment 1: The report's findings regarding areas for improvement during the
time period reviewed are largely the result of reporting andfile documentation deficiencies;
rather than any failure to evaluate compliance, document violations, or work with facilities to
correct violations. We acknowledge that adequate and timely documentation and reporting of
our compliance work is an essential function of state implementation of the CAA. However, as
our detailed responses below worked with facilities to correct violations during the time period
reviewed, and continues to do so.
EPA RESPONSE: EPA appreciates MDNR's acknowledgement of data reporting and tracking
deficiencies, along with the clear commitment to improve. Missouri is not unique among Region
7 states in file documentation deficiencies, as well as data systems communication issues.
Region 7 is working collaboratively with each state to reconcile data tracking and data systems
communication issues. EPA and MDNR have long been collaborative partners in the collective
management of the stationary source CAA program. These efforts are demonstrated to the public
through complete, timely information; and data that are easily and efficiently shared.
As discussed in greater detail below, the review of the 2018 files, as compared with the data in
the national system demonstrate that MDNR's programmatic issues in implementing the
program extend beyond data management. Following careful consideration of MDNR's publicly
available national data along with a thorough review of MDNR's representative files, EPA found
MDNR does not adhere to national guidance and expectations for compliance determinations.
MDNR General Comment 2: It is also important to note that our Air Program had already
identified and begun to address many of the reporting lapses in the fall of 2018, prior to the
beginning of EPA 's State Review Framework (SRF) review in June 2019. However, the Program
had not made retroactive changes to our files. Therefore our reporting improvements were not
reflected in your FFY2018 review. The Program completed the final data check for FFY2019
data prior to the data freeze, and we believe FFY2019 will show significant improvement in the
accuracy and completeness of the data. Specifics regarding our corrective actions are detailed
below.
EPA RESPONSE: In response to the draft report, MDNR has provided descriptions for several
new procedures that are being implemented prior to the issue of the final report. MDNR's
comments on the draft report describe numerous efforts under consideration to address the timely
entry of accurate data. EPA acknowledges the time and effort MDNR has dedicated to evaluating
the data and reporting deficiencies documented in the draft SRF report, establishing a clear
willingness to address these issues prior to issuance of the final report. EPA interprets these
actions as a recognition of the gravity of the findings. We look forward to assessing the
corrective actions taken on by the Department upon issue of the final report.
MDNR General Comment 3: Finally, we note that the EPA's FFY2018 review caught the
Department in the middle of a significant transition that impacted our data entry and data
management. The Air Program was adjusting its compliance resolution strategy just prior to the
beginning of FFY2018. Many issues that would have previously been referred to the Air
Program for enforcement action are now being resolved by our regional offices through a robust
compliance assistance program.
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EPA RESPONSE: Noted.
SPECIFIC COMMENTS
Finding 1 -1: Area for Improvement. Data Metric 2b - Files reviewed where data are
accurately reflected in the national data system.
Summary: The review exposed inaccuracies in data in the Integrated Compliance
Information System (ICIS) ICIS-Air database as compared to Air Program facility files.
The review also revealed missing Minimum Data Requirements (MDRs).
MDNR Comment: The Air Program acknowledges the importance of accuracy and minimizing
discrepancies in our data. The Program had identified these issues and had implemented
corrective action, but had not made retroactive changes to our files by the time EPA began its
review. We continue to review our current ICIS-Air data entry procedures and evaluate the
accuracy of data entry and our filing procedures. The Program will document modifications to
our procedures in revised Standard Operating Procedures (SOPs), and provide those to EPA
within 60 days of completion of the SRF Final Report. We also request that EPA provide detail
on the specific files where discrepancies were noted so that we can ensure the official records
are complete.
EPA RESPONSE: The SRF final report and recommendations are intended to provide corrective
actions to address procedural deficiencies identified in the frozen data from the subject review
year. While the evaluation is data-focused, the recommendations are process focused, aimed at
strengthening state procedures and protocols to ensure future adherence to national expectations
of states authorized to implement the CAA program. Retroactive changes to the states files and
data are not required as part of the SRF process.
EPA acknowledges MDNR's review of current ICIS-AIR data entry protocols and evaluation of
the accuracy of data entry and filing procedures. These activities are aligned with the corrective
actions outlined in the draft SRF report and will be evaluated in accordance with the criteria
listed in the final report for close-out of each recommendation.
No changes have been made in the final report in response to this comment.
Finding 1-2: Area for Improvement. Data metrics 3a2 - Timely reporting of HPV
determinations, 3bl - Timely reporting of compliance monitoring MDRs, 3b2 - Timely
reporting of stack test dates and results, and 3b3 - Timely reporting of enforcement MDRs.
Summary: Timely reporting of HPV determinations; compliance monitoring MDRs; stack
test dates and results; and enforcement MDRs are all below the national goal and national
averages.
MDNR Comment: We acknowledge that adequate and timely reporting of our work is an
essential function. We have begun immediate corrective actions to ensure that previous data is
uploaded to ICIS-Air andfuture reporting is complete and timely. Specifically:
Page 54 of 65
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1. Our procedures now require that staff provide data to the ICIS-Air data
steward in a timely fashion, a minimum of twice per month.
2. It is now policy that the data steward and supervisory staff review and compare
our records to the Enforcement and Compliance History Online (ECHO)
database on a monthly basis, and coordinate with EPA staff to verify that the data
uploaded to ICIS-Air is accurate and complete.
3. Staff are all trained in the HPV and FRV policies.
While EPA has acknowledged improvements in the Program's FFY2019 data, we continue to
review our current procedures, train staff, and evaluate our coordination and communication
practices to ensure relevant data is timely provided to our staff members that are responsible for
ICIS-Air data entry. We are also evaluating current workloads and considering a realignment of
duties to ensure data entry is prioritized.
We will document modifications to our procedures and include them in new SOPs, which we will
provide to EPA within 60 days of completion of the SRF Final Report.
EPA RESPONSE: Noted. These efforts (proposed and implemented) will be assessed and
reviewed following issuance of the final report, which will include recommendations for
corrective actions to address the findings.
No changes have been made in the final report in response to this comment.
Finding 2-1: Area for Improvement. Data metrics 5a - Full compliance evaluation (FCE)
coverage: majors and mega-sites and 5b - FCE coverage: SM-80s. (Note: SM-80s are
synthetic minor sources that emit or have the potential to emit at or above 80% of the Title
V major source threshold).
Summary: Missouri Department of Natural Resources FCE coverage of majors, mega-sites,
and SM-80s is below the national goal and national averages.
MDNR Comment: Air Program staff reviewed internal databases and compared it to information
located in the ECHO database for FFY2018. We found a number of discrepancies specific to
major sources, mega-sites, and SM-80s listed within the databases that had gone out of business,
or were otherwise not part of this source category. In addition, we found discrepancies with the
number of inspections conducted in this source category. As a result of this review and the
discrepancies we identified, the Air Program believes this finding is a data integrity issue.
The Air Program respectfully requests that EPA staff re-run the data for the FFY2018 period to
verify corrections to the number of active facilities in this class and corrections to the number of
facilities inspected in this class. We believe updates to the database will show a marked
improvement in this metric. Furthermore, if the data reveals that this issue has been resolved by
our agency without additional oversight, we request that EPA consider reclassifying this issue as
an "area for attention. "
Page 55 of 65
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EPA RESPONSE: We appreciate MDNR's considerable efforts to conduct a root cause analysis
of the FCE coverage issue in response to this finding in the draft report.
Prior to the formal SRF in July 2019, MDNR had several opportunities to review and correct the
2018 data, including during the data verification period preceding the data freeze, as well as the
time period following transmittal of the file selection list. EPA does not re-run data metric
analyses post-file review. It is outside the framework protocol to re-review data that has been
cleaned up following the authorized review. We will evaluate process improvements made as a
result of the SRF analysis in the data in subsequent years to measure progress, per the
recommendations in the final report. EPA does not measure or record improvements made
during the SRF process to past frozen data, nor amend program findings for data clean-up
performed following the file review.
No changes have been made in the final report in response to this comment.
Importantly, the Air Program has initiated steps to ensure data in ECHO and ICIS-Air is
accurately represented going forward. In March 2020, Program staff compared FFY2019 and
later data regarding these classes of facilities to data in the ECHO database and made
necessary updates. Air Program staff will discuss this area as necessary during coordination
calls with EPA Region 7 staff and we will document modifications to our procedures and include
these modifications in new SOPs, which we will provide to EPA within 60 days of completion of
the SRF Final Report.
EPA acknowledges MDNR's initial steps to ensure data entry procedures for data in ECHO and
ICIS-AIR provide for accurate public-facing data in the future. These activities are aligned with
the corrective actions outlined in the draft SRF report and will be evaluated in accordance with
the criteria listed in the final report for close-out of each recommendation. We look forward to
reviewing the SOPs and progress MDNR has made following transmittal of the final report.
No changes have been made in the final report in response to this comment.
The Air Program is also working with EPA Region 7 staff to identify tools the Department's
regional office staff can utilize for inspection planning purposes - specifically information
relating to the date of last inspection for this class offacilities in the ECHO database. We will
develop SOPs specific to inspection planning to include utilization of the tools and data
available in ECHO. Due to the time it may take to work with Region 7 staff to identify the
specific tools, coordinate the use of these tools with our five regional offices, and to draft SOPs
for our five regional offices, the Air Program requests a deadline to submit these specific SOPs
to EPA within 120 days of completion of the SRF Final Report.
MDNR's request to extend the deadline to submit the above referenced SOPs is reasonable. The
report has been amended to accommodate the requested timeline.
Finding 2-2: Meets or Exceeds Expectations. Data metric 5e - Reviews of Title V annual
compliance certifications completed.
Summary: The Air Program's review of Title V annual certifications is exemplary.
Page 56 of 65
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MDNR Comment: The Air Program appreciates EPA's acknowledgement of our success under
this element.
EPA RESPONSE: No changes have been made in the final report in response to this comment.
Finding 2-3: Meets or Exceeds Expectations. Data metrics 6a - Documentation of FCE
elements and 6b - Compliance monitoring reports (CMRs) or facility files reviewed that
provide sufficient documentation to determine compliance of the facility.
Summary: The Department of Natural Resources' documentation of FCE elements in
inspection reports as well as documentation to determine compliance meets expectations.
MDNR Comment: The Air Program appreciates EPA's acknowledgement of our success under
this element.
EPA RESPONSE: No changes have been made in the final report in response to this comment.
Finding 3-1: Area for Improvement. Data metrics 13 - Timeliness of HPV identification, 7a
- accurate compliance determinations, 7al - FRV 'discovery rate' based upon inspections
at compliance monitoring strategy (CMS) sources, 8a - HPV discovery rate at majors, and
8c - accuracy of HPV determinations.
Summary: Where documentation was present to review, the Air Program did not
demonstrate proficiency with accurate FRV and HPV compliance determinations. The Air
Program uses separate tracking databases to track these violations even though they are
required elements of the national tracking system. The Department of Natural Resources
created a unique category of compliance determination.
MDNR Response: First, the Department believes that this finding does not reflect any failure by
the Air Program to evaluate compliance, document violations, or work with facilities to correct
violations during the time period evaluated. In support, we are attaching reports to illustrate the
successful efforts by the Air Program to address FRVs through compliance assistance and
through referrals and orders during FFY 17 and FFY18.
EPA RESPONSE: The submitted MDNR internal reports are outside the scope of the SRF
Round 4 review. These reports do not provide additional relevant evidence for EPA to evaluate
MDNR's accuracy of compliance determinations in the CAA program.
The Round 4 SRF evaluation studied 35 facilities that were selected as a representative sample of
all aspects of MDNR's CAA compliance and enforcement work for the 2018 fiscal year. In
reviewing the supplemental information provided, it appears MDNR has provided a list of
finalized agreements with seventeen facilities in various program areas outside of the CAA SRF
review areas; programs such as asbestos, which are beyond the scope of this CAA SRF review.
For the single applicable facility (Northstar Battery) that could potentially be subject to this
review, a) this facility was not among the predetermined SRF facility set; and b) there is no
Page 57 of 65
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material to give context to the basis and nature of the agreement executed in 2018 to inform an
evaluation, including information on the particular violation(s), timelines, procedures, reporting,
public access to data, penalties (if any), and resolution. EPA therefore cannot use the
supplemental information to inform the final report.
No changes have been made in the final report in response to this comment.
The Air Program nevertheless acknowledges the importance of appropriately classifying
violations as FRV and/or HPV, and we have begun immediate corrective actions to ensure the
appropriate classification of all violations. Specifically:
1. Our procedures now require that staff identify compliance issues as FRVs and
HPVs, if the issues fall into these categories of violation, in inspection reports and
correspondence sent to facilities to ensure proper documentation of the
violations.
2. Supervisors and managers must review documentation of compliance issues to
ensure staff determinations are accurate andfollow the FRV and HPV policies.
3. Staff are trained regarding proper compliance evaluation determinations.
4. Staff are trained in the HPV and FRV policies, including the requirement to
notify facilities of HPVs within 45 days of discovery.
The Air Program conducted individual training on FRV and HPV policies with all relevant staff
members. In addition, the Program is developing training materials to present to all compliance
and enforcement staff, including regional office inspectors, during a scheduled training event
this coming June.
Noted. EPA acknowledges MDNR's above listed steps to ensure the appropriate classification of
all CAA violations. These activities are aligned with the spirit of the corrective actions outlined
in the draft SRF report and will be evaluated in accordance with the criteria listed in the final
report for close-out of each recommendation. We look forward to reviewing the progress MDNR
has made following issuance of the final report.
No changes to the report have been made in response to the information provided.
EPA further expressed concern about the Air Program's use of separate databases to track
violations. The databases that the Air Program use are important communication tools between
the Air Program, the Department's Regional Offices, and other programs within the Division of
Environmental Quality. They allow program and regional staff to view compliance and
enforcement data across the programs and across the state. In addition, the Air Program uses
these internal databases to generate reports regarding inspection and enforcement activities to
share with the public, stakeholders, and the Missouri Air Conservation Commission. EPA 's
ECHO and ICIS-Air databases do not have the tools we need to fulfill these functions and are
not broadly available to Department staff. While having duplicate databases may be seen as
inefficient, the important outcome here is that the correct information is entered into EPA's
Page 58 of 65
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national tracking system. We are committed to ensuring that all relevant information is properly
submitted by the Air Program.
Complete and accurate data are vital to our understanding of current air quality conditions in our
states, and critical to our effective planning for the future. In an era of access constraints and
dwindling resources, data that give an accurate picture of the conditions in our states are crucial
in shaping our work, present and future.
EPA does not prevent the use of multiple internal databases to track and present CAA
compliance and enforcement information. Through discussions with technical staff and review of
the internal and external databases, EPA concluded that data inaccuracies and discrepancy issues
identified in the national public facing database, in part, likely stem from the duplication of effort
inherent in dual tracking systems.
A key program expectation is that of ensuring the public facing data is accurate and complete. As
articulated in EPA's September 2014 Guidance on Federally-Reportable Violations for Clean Air
Act Stationary Sources (FRV guidance), a fundamental principle of effective compliance
monitoring programs is having a complete and accurate inventory of sources with timely
information on potential compliance problems. Reporting violations of the CAA in a national
data system is critical at the federal, state, and local levels; and vital to the communities we
serve. While our ultimate purview is the national database, EPA views the existence of multiple
internal state databases as a potential roadblock to accurate reporting to our public facing
systems.
Finally, EPA noted that the Department is using a unique category of compliance in the Air
Program. While we understand EPA 's concern with national consistency, the Department
believes that the use of "unsatisfactory finding" letters is consistent with EPA 's September 2014
memorandum regarding Guidance on Federally-Reportable Violations for Clean Air Act
Stationary Sources. In that memorandum, EPA details that formal notice of a FRV or potential
FRV to a source may be provided in a variety of ways:
For example, such formal notice may be a Notice of Violation (NOV), Notice to Correct (NIC),
Notice of Opportunity to Correct (NOC), Notice to Comply (NIC), or Notice of Noncompliance
(NON). Regardless of the name of the formal notice of violation, if the purpose of the formal
notice is to notify a source of an FRV, it is to be reported to ICIS-Air. (Emphasis added).
As the attached policy excerpt shows, the use of an "unsatisfactory finding" letter is to formally
notify a source of a compliance issue and the requirement to take necessary action to resolve the
compliance issue. Therefore, we believe that issuing a notice of "unsatisfactory finding" and
reporting these letters to ICIS-Air achieves the desired outcome of formally notifying a source of
a FRV or potential FRV.
The SRF review comparing the national database with the state files during the SRF review
demonstrated the state is not following the national guidance and expected procedures for
elements of compliance determinations. EPA reiterates the draft report in stating here that the
state's facility files demonstrate MDNR processes for evaluating violations, reporting violations,
tracking violations, and ensuring return to compliance fall outside national expectations,
guidance and practices.
Page 59 of 65
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Regarding the issue of the unique category of violation created by MDNR (i.e., Unsatisfactory
Findings - No Response Required letters), the state has misinterpreted the FRV guidance,
which does not allow for the creation of a unique category of compliance determination. There is
no flexibility in the guidance to create a unique type of enforcement category for violations that
require facility responses, federal reporting and tracking. No flexibility exists in the national
program to take an alternate path with violations in terms of follow-up and return to compliance.
It is not the title of the notice at issue, it is the content of the notice and absence of a required
facility response that deviates from the national expectations. It is not the name of the notice that
is in question, it is the use of a unique type of notice that is not recorded and tracked in the
national data base for public awareness that is at issue. The unique notices fail to meet national
expectations in the following areas: violation reporting, tracking, and return to compliance; as
outlined in the FRV guidance.
As discussed in greater detail below, MDNR's FRV and HPV discovery rate data in the national
data system (Metrics 7al and 8a) in FFY18 was zero; no Federally Reportable or High Priority
violators were identified to the public in data reports to communities in Missouri. The SRF
review of a representative set of files reveal that there were facilities that violated the CAA (per
HPV and FRV guidances) in FFY18, violations which require federal reporting, responses,
tracking and return to compliance.
The lack of public notice and access to a broader range of information on the violations and air
pollution that affect communities is a key issue. The program staff skill in identifying and
correcting violation cannot be evaluated when the process and data availability deviate from
national expectations. The need and emphasis on this reporting in the national system is
emphasized in the national FRV guidance as follows, "Reporting of violations of the CAA in the
national air compliance and enforcement data system, ICIS-Air (successor to AFS). is critical
for national program management and oversight as well as for transparency and public access
purposes."
EPA issued the September 2014 FRV guidance because routine State Review Framework (SRF)
evaluations confirmed inconsistent and under-reporting of violations by states. The final SRF
report includes the statement that, for facilities where file documentation demonstrates FRV and
HPV violations were discovered and not classified appropriately, MDNR tracked these violations
on a separate internal spreadsheet; these data were not entered and tracked in national databases.
As a means of addressing these findings, EPA has added the following amended
recommendations in the final SRF report, aimed at strengthening our communication on these
issues along with MDNR's program success in this area:
EPA will provide training on FRV and HPV policies.
EPA and MDNR will review and discuss all MO CAA violations, FRV and HPV actions
on a bi-weekly frequency during state and federal compliance/enforcement calls.
EPA and MDNR will implement a shared facility Compliance Determination OneDrive
(or similar electronic sharing mechanism) hub to facilitate transparent shared
documentation of all enforcement determinations in the state, as compared to the national
policies, for each facility inspected.
Page 60 of 65
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o EPA will provide a tillable form (i.e., Compliance Determination Form) for
MDNR to document compliance/enforcement decisions for the purpose of
streamlining and communicating compliance determinations,
o Compliance Determination Forms will require report out of the following:
¦ Violations found in each inspection, with an emphasis on FRV/HPV
criteria;
¦ A comparison of each violation with a comprehensive list of all potential
FRV and HPV violations;
¦ Documentation of required follow-up corrective actions, including
timeline to completion.
o All facility Compliance Determination Documents will be discussed on bi-weekly
calls.
o Data pulls from the national database will be discussed on monthly calls.
Following one year of implementing the training, Compliance Determination Forms, and joint
enforcement calls, EPA will conduct a partial, focused SRF to evaluate progress on metrics 7, 8
and 13.
Finding 4-1: Area for Improvement. Data metrics 10a - Timeliness of addressing HPVs or
alternatively having a case development and resolution timeline in place, 10b - Percent of
HPVs that have been addressed or removed consistent with the HPV Policy, 14 - HPV case
development and resolution timeline in place when required that contains required policy
elements, and 9a - Formal enforcement responses that include required corrective action
that will return the facility to compliance in a specified time frame or the facility fixed the
problem without a compliance schedule.
Summary: The Air Program does not meet the objectives of the HPV policy in terms of
enforcement responses, compliance schedules, timeliness, and return to compliance.
MDNR Comment: Without knowing in which files EPA found deficiencies, it is impossible for the
state to respond specifically as to the accuracy of this finding.
EPA RESPONSE: EPA transmitted the facility file selection list for review on May 20, 2019.
Additionally, EPA forwarded the file selection list prior to the entrance interview in June of
2019. Considerable time, effort, and discussions among EPA and MDNR staff were devoted to
selecting the facility files.
There may be cases in which the violation was resolved through a non-formal process that did
not require case development or a resolution timeline.
The method of addressing an HPV or FRV violations through a "non-formal process" is
antithetical to the required formal procedures for addressing these high priority or federally
reportable violations. Non-formal processes are outside national guidance, expectations and
acceptable practices for states authorized to address and correct stationary source CAA program
violations. The HPV classification is, by definition, a formal process, requiring formal case
development, as well as resolution in a timely manner. To resolve HPVs in an informal manner,
Page 61 of 65
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without documentation, reporting and tracking of the resolution, is a deviation from national
program requirements.
In other cases, those mechanisms may have been developed but, consistent with past practice,
were not documented in the paper file. In order to provide a thorough response, it is necessary to
know which files EPA reviewed.
A key overarching finding for the round 4 SRF review is past practices of not documenting
violations, timelines and resolutions in the paper files does not serve to inform EPA and the
public of any actions the state has taken in implementing and enforcing the CAA program.
Further, the report notes with regard to metrics 10B and 14 that "the low sample population size
ofHPVfacilities reviewedfrom multiple previous years does not offer a reliable picture of the
state's performance and success. " The report also notes that "the relatively small sample size
diminishes the confidence in these results. " Given these limitations, the Department requests that
EPA withdraw these findings from the final report or provide a determination of "Inconclusive, "
rather than have the record reflect a performance result that is not well-documented. The
Department also requests that the sample size usedfor metrics 10b and 9a be re-considered in
the same light.
As was discussed with MDNR staff prior to the file review, the sample population size for the
review period is problematic for a number of reasons. The state Data Metric Analysis performed
on the 2018 frozen data prior to the formal SRF file review (transmitted to MDNR via email on
May 20, 2019) recorded MDNR's FRV and HPV discovery rates are 0% and 0%, well below the
national averages of 7.8% and 2.5%, respectively. In order to review the aspects ofHPV case
timeliness, development, and resolution captured by SRF metrics 9a, 10a, 10b, and 14, the SRF
process provides for an extended review period to previous years in order to identify facilities
and gain a broader understanding of program performance in these metrics for the time period
since the Round 3 review of the data. When HPVs are not reported, EPA looks to previous years
to provide recommendations for strengthening MDNRs discovery, timeliness and corrective
actions for HPV and FRVs.
EPA notes the absence of HPVs and FRVs for the 2018 review period can likely be attributed to
one of two factors, a) data and reporting problems; or b) the potential (as discussed above) for
inaccurate compliance determinations. Our review of the files did conclude that there are high
priority violators in the state, as defined in the HPV policy; and the state is not categorizing and
following up on HPVs per national expectations.
EPA is confident in the essence of the conclusions drawn from the data reviewed; however to
clarify the findings, the report has been amended as follows, "... the absence ofHPV facilities
discovered by MDNR during the w period was addressed by widening the lens of
review of the state program in this area tew^m H*tetieft-SKe-ef4iPV-4ft6iiittes-Fe₯ie₯(£e4
frem-to multiple previous years. This action was taken in order to evaluate the state program's
progress in these metrics since the Kouni )rt findings were issued, as a. means to measure
d©-H©t-effeii-ar4:eUaWe-pi6ttH:e-(aftd-peF6efitage)-ef-the state's performance and success in these
areasT
Page 62 of 65
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fewnaay-Feaset t^fHpertaJrttyT^ftFge-saiftple-siae-B-mefe-FepFesefttettYe-ef^lte-pepttlfttieft^
UHHtk*g4ke4ft£kieft6e-ef-ettlWeFS-eiL^?rtFeme-ebseFf
-------
The Air Program will document updated processes regarding this issue and include them in
SOPs, which we will provide to EPA Region 7 within 60 days of completion of the SRF Final
Report. The submittal will also contain a detailed description of the tracking system we use for
HPV enforcement cases. Air Program staff will discuss the progress ofHPV enforcement cases,
including any foreseeable delays in case development and resolution of cases, during
coordination calls with EPA Region 7 staff.
Noted.
Finding 5-1: Area for Improvement. Data metrics 11a - Penalty calculations reviewed that
document gravity and economic benefit and 12b - Penalties collected
Summary: Penalty calculation documentation did not account for economic benefit. Some
files did not include documentation that penalties were collected.
MDNR Comment: Without knowing in which files EPA found deficiencies, we cannot provide a
detailed response. We request additional information on the specific files regarding missing
penalty documentation so we can ensure the official records are complete. While some of the
files that EPA reviewed apparently did not include documentation that penalties were collected,
the Department did in fact collect all penalties assessed, or referred cases to the Attorney
General's Office for collection if the responsible party failed to pay the penalty.
EPA RESPONSE: EPA transmitted the facility file selection list to MDNR on May 20, 2019,
including the files reviewed for penalty assessment and collection.
The Air Program will follow HPV guidance and state rule 10 CSR 10-6.230 "Administrative
Penalties " in regards to the use of an economic benefit penalty where appropriate. In addition,
the Air Program has amended its penalty policy and worksheet which includes both gravity and
economic benefit components, and will submit a copy of it within 60 days of completion of the
SRF Final Report. The SOPs discussed above will include the requirement to file appropriate
documentation indicating payment of the penalty, including a copy of the check with the routing
number and account number redacted, or other appropriate documentation.
Noted. These activities are aligned with the corrective actions outlined in the draft SRF report
and will be evaluated in accordance with the criteria listed in the final report for close-out of
each recommendation. We look forward to reviewing the progress MDNR has made following
issuance of the final report.
Finding 5-2: Area for Attention. Data metric 12a - Documentation of rationale for
difference between initial penalty calculation and final penalty.
Summary: Documentation of the difference between initial penalty calculation and final
penalty was present and followed policy in most but not all files.
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MDNR Comment: The Air Program is revising procedures to document the rationale for
differences between the initial penalty calculation andfinal penalty calculation. We will include
this requirement in our penalty policy and worksheet, which we will submit to EPA within 60
days of completion of the SRF Final Report.
EPA RESPONSE: Noted. These activities are aligned with the corrective actions outlined in the
draft SRF report and will be evaluated in accordance with the criteria listed in the final report for
close-out of each recommendation. We look forward to reviewing the progress MDNR has made
following issuance of the final report.
MDNR Conclusion: We appreciate EPA's consideration of our responses. We want to stress
again that Air Program staff and the Department's regional office inspectors effectively
evaluated compliance, documented violations, and worked with facilities to correct violations
during the time period reviewed, and continue to do so.
We appreciate MDNRs thoughtful responses to the draft SRF report. We place a high value on
our continued strong partnership and mutual commitment to open communication as we work
together toward resolution of the issues identified during the Round 4 SRF review process. We
are confident the path outlined in the final report will strengthen our mutual efforts of protection
of human health and the environment.
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STATE REVIEW FRAMEWORK
Missouri
Clean Water Act
Implementation in Federal Fiscal Year 2019
U.S. Environmental Protection Agency
Region 7
Final Report
October 12, 2021
-------
I. Introduction
A. Overview of the State Review Framework
The State Review Framework (SRF) is a key mechanism for EPA oversight, providing a
nationally consistent process for reviewing the performance of state delegated compliance and
enforcement programs under three core federal statutes: Clean Air Act, Clean Water Act, and
Resource Conservation and Recovery Act. Through SRF, EPA periodically reviews such
programs using a standardized set of metrics to evaluate their performance against performance
standards laid out in federal statute, EPA regulations, policy, and guidance. When states do not
achieve standards, the EPA will work with them to improve performance.
Established in 2004, the review was developed jointly by EPA and Environmental Council of the
States (ECOS) in response to calls both inside and outside the agency for improved, more
consistent oversight of state delegated programs. The goals of the review that were agreed upon
at its formation remain relevant and unchanged today:
1. Ensure delegated and EPA-run programs meet federal policy and baseline performance
standards
2. Promote fair and consistent enforcement necessary to protect human health and the
environment
3. Promote equitable treatment and level interstate playing field for business
4. Provide transparency with publicly available data and reports
B. The Review Process
The review is conducted on a rolling five-year cycle such that all programs are reviewed
approximately once every five years. The EPA evaluates programs on a one-year period of
performance, typically the one-year prior to review, using a standard set of metrics to make
findings on performance in five areas (elements) around which the report is organized: data,
inspections, violations, enforcement, and penalties. Wherever program performance is found to
deviate significantly from federal policy or standards, the EPA will issue recommendations for
corrective action which are monitored by EPA until completed and program performance
improves.
The SRF is currently in its 4th Round (FY2018-2022) of reviews, preceded by Round 3
(FY2012-2017), Round 2 (2008-2011), and Round 1 (FY2004-2007). Additional information
and final reports can be found at the EPA website under State Review Framework.
II. Navigating the Report
The final report contains the results and relevant information from the review including EPA and
program contact information, metric values, performance findings and explanations, program
responses, and EPA recommendations for corrective action where any significant deficiencies in
performance were found.
Page 1 of 54
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A. Metrics
There are two general types of metrics used to assess program performance. The first are data
metrics, which reflect verified inspection and enforcement data from the national data systems
of each media, or statute. The second, and generally more significant, are file metrics, which are
derived from the review of individual facility files in order to determine if the program is
performing their compliance and enforcement responsibilities adequately.
Other information considered by EPA to make performance findings in addition to the metrics
includes results from previous SRF reviews, data metrics from the years in-between reviews,
multi-year metric trends.
B. Performance Findings
The EPA makes findings on performance in five program areas:
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, accuracy of compliance determinations, and
determination of significant noncompliance (SNC) or high priority violators (HPV)
Enforcement - timeliness and appropriateness of enforcement, returning facilities to
compliance
Penalties - calculation including gravity and economic benefit components, assessment,
and collection
Though performance generally varies across a spectrum, for the purposes of conducting a
standardized review, SRF categorizes performance into three findings levels:
Meets or Exceeds: No issues are found. Base standards of performance are met or exceeded.
Area for Attention: Minor issues are found. One or more metrics indicates performance
issues related to quality, process, or policy. The implementing agency is considered able to
correct the issue without additional EPA oversight.
Area for Improvement: Significant issues are found. One or more metrics indicates routine
and/or widespread performance issues related to quality, process, or policy. A
recommendation for corrective action is issued which contains specific actions and schedule
for completion. The EPA monitors implementation until completion.
C. Recommendations for Corrective Action
Whenever the EPA makes a finding on performance of Area for Improvement, the EPA will
include a recommendation for corrective action, or recommendation, in the report. The purpose
of recommendations are to address significant performance issues and bring program
performance back in line with federal policy and standards. All recommendations should include
Page 2 of 54
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specific actions and a schedule for completion, and their implementation is monitored by the
EPA until completion.
III. Review Process Information
Clean Water Act (CWA)
Key dates:
SRF Kickoff letter mailed to MDNR: March 31, 2020
File selection list sent to MDNR: May 6, 2020
Data Metric Analysis sent to MDNR: Initial March 31, 2020, revised sent May 6, 2020
Entrance interview conducted: Due to the pandemic, files were reviewed virtually. No
entrance interview was conducted.
File review conducted: Initial files were reviewed virtually, starting approximately in early
June and ending in early August 2020. MDNR provided supplemental files, review of these
files concluded in late September 2020.
Exit interview conducted: Virtual exit interview conducted August 26, 2020.
Draft report sent to MDNR on January 25, 2021.
Final report issued: October 12, 2021.
State and EPA key contacts for review:
Dru Buntin, MDNR, Director
Ed Galbraith, MDNR, Director, Division of Environmental Quality
Chris Wieberg, MDNR, Director, Water Protection Program
Kristi Savage-Clarke, MDNR, Environmental Program Manager
Joel Reschly, MDNR, Legal Counsel, General Counsel's Office
Jodi Bruno, EPA, R7 Enforcement and Compliance Assurance Division (ECAD)
Don Hamera, EPA, R7 Enforcement and Compliance Assurance Division (ECAD)
Seth Draper, EPA, R7 Enforcement and Compliance Assurance Division (ECAD)
Cynthia Sans, EPA, R7 Enforcement and Compliance Assurance Division (ECAD)
Paul Marshall, EPA, R7 Enforcement and Compliance Assurance Division (ECAD),
Retired
Melissa Bagley, EPA, R7 Office of Regional Counsel
Kevin Barthol, EPA Region 7 SRF Coordinator
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Executive Summary
Areas of Strong Performance
The following are aspects of the program that, according to the review, are being implemented at
a high level:
MDNR permit data entry rate for major and non-major facilities is meeting the national
goal.
MDNR met their CMS commitments for all different types of inspections for FY19.
MDNR inspection reports were complete and sufficient to determine compliance.
The majority of inspection reports reviewed were determined to have made accurate
compliance determinations.
MDNR consistently documents the penalty payment information.
Priority Issues to Address
The following are aspects of the program that, according to the review, are not meeting federal
standards and should be prioritized for management attention:
Data found in ECHO/ICIS did not reflect the data that was contained in the MDNR files.
The review exposed inaccuracies and discrepancies in the ECHO data as compared to the
MDNR files review.
MDNR does not consistently or accurately identify single-event violation(s) as SNC or
non-SNC.
MDNR has not resolved the disposition of inspection field notes, checklists, and other
materials gathered to create a finalized inspection report.
MDNR's formal and informal enforcement actions do not always bring a facility back
into compliance.
Enforcement actions reviewed by EPA did not meet the state enforcement response
procedures defined by their Procedures for Assistance, Compliance, and Enforcement
(PACE) manual.
MDNR is not applying the Pretreatment regulations appropriately.
MDNR did not always complete penalty calculations that document economic benefit.
EPA reviewers were not able to locate documentation that explained the difference
between the initial and final penalty in the files reviewed.
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Clean Water Act Findings
CWA Element 1 - Data
Finding 1-1
Meets or Exceeds Expectations
Recurring Issue:
No
Summary:
MDNR permit data entry rate for major and non-major facilities is meeting the national goal.
Explanation:
Out of 2491 facilities, 2466 had data entered. MDNR data entry on majors and non-major
discharge monitoring reports is above the national goal. Out of 36,369 facilities, 34,294 had DMRs
entered.
Relevant metrics:
Metric ID Number and Description
Natl
Goal
Natl
Avg
State
N
State
D
State
Total
lb5 Completeness of data entry on major and non-
major permit limits. [GOAL]
95%
90.6%
2466
2491
99% j
lb6 Completeness of data entry on major and non-
major discharge monitoring reports. [GOAL]
| 95%
93.3%
34294
36369
94.3%
State Response: None
CWA Element 1 - Data
Finding 1-2
Area for Improvement
Recurring Issue:
Recurring from Round 3
Page 5 of 54
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Summary:
Data found in ECHO/ICIS did not reflect the data that was contained in the MDNR files. The
review exposed inaccuracies and discrepancies in the ECHO data as compared to the MDNR files
review.
Explanation:
EPA compared the file review information with what is shown in ECHO/ICIS and found that some
data was missing or inaccurate. EPA's review revealed that 23 out of 66 files reviewed has some
type of data error. Noteworthy findings reveal that 21 facilities, which had LOW/NOVs issued
were not in ECHO/ICIS. Also 4 inspections were not entered into ECHO/ICIS.
Regarding pre-treatment inspections, the audit/PCI date of inspection all were properly input into
ICIS (as verified through ECHO), however in some cases, independent sampling events occurred
at a later date. None of the sampling inspections appeared in ICIS. In addition, if the PCI or audit
was transmitted with an LOW or NOV as part of the transmittal package, the informal enforcement
action event is not being supplied to ICIS. This information needs to be entered into ICIS.
This is a repeat finding from Round 3 (Finding 1-1). Round 3 findings identified similar instances,
batching errors.
Another Round 3 finding still open (Finding 3-1) - Files reviewed showed MDNR does not
consistently or accurately identify single-event violations as SNC or non-SNC. This was a goal
metric in Round 3 (8b 1), but this metric is no longer used in Round 4. Round 4 has 7j 1 (Number
of major and non-major facilities with single-event violations reported in the review year, (review
indicator) and 8a3- Percentage of major facilities in SNC and non-major facilities Category I
noncompliance during the reporting year (review indicator). Locating this still open finding
(Round 3-Finding 1-1) in this area as a data issue.
Relevant metrics:
,, _ . ... .. . , Natl : Natl State State State
Metric ID Number and Description . . .. _ , ,
1 Goal Avg N D Total
2b Files reviewed where data are accurately reflected i ,nnn/ i i i i , , on/
. , . , j , , r^^vAxn 100% i 23 i 66 34.8%
in the national data system [GOAL]
State Response:
Please reference General Clarification Request Nos. 1 and 3 above. Without a detailed list
of what was missing, we cannot determine whether the missing data was a data entry
failure or arejection from the Integrated Compliance Information System (ICIS).
As EPA is aware, Missouri is a batch data submission state and there are still data transfer
issues between our Missouri Clean Water Information System (MoCWIS) and EPA's
ICIS/Enforcement and Compliance History Online. We are still experiencing rejection of
some data during batching. The Department appreciates EPA providing additional access to
Page 6 of 54
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its data contractor, Windsor Solutions. Windsor has run another analysis based on some data
identifyingspecific groups of data rejected by ICIS.
Regarding consistent identification of single-event violations (SEVs) as either significant
noncompliance (SNC) or non-SNC, the Department believes that EPA's expectations may not
be within the Department's reach. Although MoCWIS is transferring SEVs to ICIS, the
Departmentis still unable to identify which SEVs are SNC in MoCWIS. One complicating
factor is that EPA's Single Event Violation Data Entry Guide for ICIS-NPDES does not
identify which of the 168 SEVs should be considered SNC. Another complication is that the
Department will need to make significant enhancements to MoCWIS to meet this expectation.
Compounding those issues further, it's the Department's understanding that ICIS itself does
not have the functionality to identify that an SEV is SNC and could not accept that data from
MoCWIS even if we were able to enhance the database.
If EPA continues to require that the Department meet this expectation, we ask that EPA
provide the following resources: 1) training on SEVs, particularly regarding which SEVs are
SNC and how to identify them in the field; 2) enhancement to ICIS in order to accept SEV
SNC records; and 3) ongoing assistance to the Department in overcoming unforeseen barriers
that may arise during fulfillment of this obligation. The time commitment necessary to either
enhance the Department's MoCWIS database or manually enter SEV data into ICIS would
greatly reduce theDepartment's ability to complete enforcement actions.
Regarding the recommended/required milestones, the Department is hesitant to commit to
any schedule for corrective action until we better understand the data discrepancies
resulting in EPA's finding for this element.
EPA RESPONSE TO STATE COMMENTS:
EPA provided a list of 2b metrics where data discrepancies/errors were found on July 2,2021
(email sent to MDNR).
After consulting with EPA Headquarters regarding ICIS's capabilities and SEV codes, EPA
proposes to use the Headquarters' guidance on SEVs, SNC. An email describing this approach
was sent to MDNR on July 21, 2021. EPA Headquarters confirmed that ICIS can handle SEV
codes and SNC. A Follow-up discussion was held on Sept 1, 2021 with MDNR staff to discuss
this guidance as a path forward.
In regard to training, EPA headquarters provided SEV training on June 14, 2021. The slides
from this training along with Headquarters' instruction on entering SEVs/SNC were sent to
MDNR staff on July 21, 2021. EPA Headquarters confirmed that ICIS can handle SEV codes
and SNC. EPA Headquarters and Region 7's will continue to provide training and assistance for
data issues as needed.
Completion dates have been extended.
Page 7 of 54
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Recommendation:
Uec
#
Due Dale
09/30/2024
Recommendation
MDNR should ensure that all data associated with their compliance
inspections and enforcement actions are accurately and timely entered and
reflected in the national database. MDNR will provide the following to
EPA.
1) By June 1, 2022, submit to EPA a data workplan to address the
missing data entry elements in ICIS/ECHO. This plan should
include an SOP for data entry. The data workplan will also address
entering SEVs and identifying if they are SNC. This workplan
should include interim milestone dates to achieve accurate data by
September 30, 2024.
2) MDNR should work with EPA's contractor, Headquarters, and the
Region to achieve remediation measures outlined in the FY2020
contractor analysis (ICIS-NPDES Data Flow Support, SNC
Remediation Report MDNR Draft version 0.5 9/23/2020, Windsor
Solutions). These measures should not only address the SNC
facilities in erroneous non-compliance status, but overall
MOCWIS/ICIS data variations.
3) Report to EPA quarterly (January 15, April 15, July 15, and
October 15) on the actions taken to address this finding; and,
4) If by September 30, 2024, EPA reviews MDNR data and finds that
data entry is complete and accurate (85% or greater), this
recommendation will be closed.
CWA Element 2 - Inspections
Finding 2-1
Meets or Exceeds Expectations
Recurring Issue:
No
Summary:
MDNR met their CMS commitments for all different types of inspections for FY19.
Explanation:
Page 8 of 54
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The EPA compared the reported FY2019 CMS end-of-year numbers from MDNR to annual
commitments made at the beginning of the year in its CMS alternative plan. As summarized in the
table below, MDNR met its inspection commitments for FY2019.
Relevant metrics:
Page 9 of 54
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Metric ID Number and Description
4a 1 Number of pretreatment compliance
inspections and audits at approved local
pretreatment programs. [GOAL]
Natl Goal
100% of
commitments'^
Natl
Avg
State
N
31
State
D
28
State
Total
110.7%
4al0 Number of comprehensive
inspections of large and medium
concentrated animal feeding operations
(CAFOs) [GOAL]
100% of
commitments%
61
12
508.3%
4a2 Number of inspections at EPA or
state Significant Industrial Users that are
discharging to non-authorized POTWs.
[GOAL]
100% of
commitments%
30
27
111.1%
4a4 Number of CSO inspections.
[GOAL]
100% of
commitments%
1
1
100%
4a5 Number of SSO inspections. [GOAL]
100% of
commitments%
51
40
127.5%
4a7 Number of Phase I and IIMS4 audits
or inspections. [GOAL]
100% of
commitments%
I
1 30
30
100%
4a8 Number of industrial stormwater
inspections. [GOAL]
100% of
commitments%
|
| 309
281
110%
4a9 Number of Phase I and Phase II
construction stormwater inspections.
[GOAL]
100% of
commitments%
219
197
111.2%
5al Inspection coverage of NPDES
majors. [GOAL]
100%
52.8%
64
61
104.9%
5b 1 Inspections coverage of NPDES non-
majors with individual permits [GOAL]
100%
22.6%
645
567
1 13.8%
5b2 Inspections coverage of NPDES non-
majors with general permits [GOAL]
100%
5.6%
528
478
1 10%
State Response: None
Page 10 of 54
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CWA Element 2 - Inspections
Finding 2-2
Meets or Exceeds Expectations
Recurring Issue:
No
Summary:
MDNR inspection reports were complete and sufficient to determine compliance.
Explanation:
Regarding metric 6a, MDNR achieved a high percentage level of inspection reports that were
complete and sufficient to determine compliance.
EPA notes that some of the CAFO inspection reports did not include photographs of the facility.
Photos would have enhanced the overall quality of these reports.
Pre-treatment audits reviewed were well written and comprehensive.
EPA noted some instances where an inspection checklist was not completed. The Procedures for
Assistance, Compliance and Enforcement on page 264 (Section 12.1.5) indicates that a checklist
must be used. Section 4.4.3 (page 102) indicates that checklist should be used if available. MDNR
should clarify the circumstances of when a checklist is used and clarify wording in the PACE
manual.
Relevant metrics:
Metric ID Number and Description
6a Inspection reports complete and sufficient to
determine compliance at the facility. [GOAL]
State Response: None
Natl Natl State State State
Goal ; Avg N D Total
100%
79
82
96.3%
CWA Element 2 - Inspections
Finding 2-3
Page 11 of 54
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Area for Improvement
Recurring Issue:
Recurring from Round 3
Summary:
MDNR has not resolved the disposition of inspection field notes, checklists, and other materials
gathered to create a finalized inspection report.
Explanation:
This is an open item from Round 3 (Finding 2-3) that MDNR files did not contain any information
on how inspection checklist or field notes were retained. Once the inspection report is finalized,
the field notes and checklists are destroyed. The current PACE manual in Section 4.1 under Field
Activities specifies how these records are managed, "Delete working papers, extra photographs,
and other documentation once the relevant information is incorporated into and the final report
is completed." Recent correspondence from MDNR indicates that internal counsel for MDNR is
reviewing current record retention practices prescribed in the PACE manual in response to
comments from EPA R7. Additional information will be provided once the review is completed.
EPA has not heard back from MDNR on this finding. EPA is working with MDNR to address this
open item.
The 2019 pre-treatment review resulted in a similar finding- Most Audits/PCI reviewed did not
have the attached checklist that was completed as part of the inspection process. From a federal
perspective, checklists generated in the course of an audit are considered records and must be
preserved. This was discussed in the PCI/Audit portion of the closeout conference review and is
still awaiting resolution. EPA considers these documents to be records and they must be preserved.
Relevant metrics:
Metric ID Number and Description
6a Inspection report completeness for documentation
record retention (carryover)
State Response:
Please reference General Clarification Request No. 1 and General Comment No. 1 above. As
noted in EPA's report, our PACE Manual contains the current procedure for disposition of
field notes. At this time, a legal review of our field note retention policy is not scheduled. If
the current policy does not meet federal law, please provide that information. Otherwise, we
requestEPA withdraw the recommendation on this finding.
EPA 's RESPONSE TO STATE COMMENTS:
EPA continues to recommend thatMoDNR conduct a legal review to determine the proper
procedure for disposition of field notes, checklists and any other materials to ensure
Natl Natl State State ; State
Goal ; Avg N D Total
! 100% | 0 1 82 I 0%
Page 12 of 54
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consistency with state andfederal law. EPA has concerns as to whether the disposal of these
records is meeting federal and state record keeping/retention requirements as described
below. We question if it is appropriate to dispose of inspection notes/checklists that are not
otherwise captured in some other format. Please see the following:
EPA notes that a record in the State of Missouri is defined by RSMo 109.210. and argues that
"field notes" and "checklists" as part of an inspection meets this state definition because these
are documents made in the transaction of official business.
(5) "Record", document, book, paper, photograph, map, sound recording or other material,
regardless ofphysical form or characteristics, made or received pursuant to law or in
connection with the transaction of official business. Library and museum material made or
acquired and preserved solely for reference or exhibition purposes, extra copies of documents
preserved only for convenience of reference, and stocks ofpublications and ofprocessed
documents are not included within the definition of records as used in sections 109.200 to
109.310, and are hereinafter designated as "non record" materials. "
It is important to note that often the determination of a record can reflect on the documents
purpose, value, and adequacy of that document. In this instance, EPA concludes that field
notes/checklists are purposefully made to support legal determinations of compliance with
Missouri environmental law (and often federal environmental law) and may later function as
evidence to support such conclusions.
Given EPA '.s conclusion that field notes and checklists are likely a "record" for purposes of
state law, EPA, as part of this review andfinding, evaluated the disposition offield notes,
checklists to determine if these documents are consistent with EPA regulations. 40 CFR §
123.26 states, "(a) State programs shall have procedures for receipt, evaluation, retention and
investigation for possible enforcement of all notices and reports required ofpermittees and other
regulated persons (andfor investigation for possible enforcement offailure to submit these
notices and reports)
Additionally, the NPDES Compliance Inspection Manual EPA Publication Number 305-K-l 7-
001 Interim Revised Version, January 2017, Chapter 2.E Inspection Procedures-
Documentation, includes the following:
Inspector's Field Notebook- "Notebooks become an important part of the evidence package and
can be admissible in court. The field notebook is a government record and subject to record
retention schedules".
Further in the same section under Documents and Digital images- "All documents taken or
prepared by the inspector such as completed checklists for the inspection report should be noted
and related to specific inspection activities
Finally, relevant sections from the Memorandum of Agreement between EPA and MDNR
dated December 14th, 2016, include the following:
Page 13 of 54
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Section V. Compliance Evaluation and Permit Enforcement, Section B. Compliance Review,
"MDNR shall conduct timely and substantive reviews and keep complete records of all material
relating to compliance status of entities subject to regulation under the NPDES program,
including but not limited to, Compliance Schedule Reports, Discharge monitoring reports,
Compliance Inspection Reports, and any other reports that entities may be required to submit
under the terms and conditions of an NPDES permit, approved Pretreatment Program,
administrative order or judicial enforcement action. "
Section V. Compliance Evaluation and Permit Enforcement, Section D, Enforcement Response,
3. MDNR shall be able to demonstrate that its enforcement response procedures result in: d,
"Compilation of complete and accurate records that can be used in future enforcement actions. "
It is EPA's opinion that field notes, checklists meet the definition of a record in the State of
Missouri and EPA regulations and should be preserved. EPA 's opinion is that field notes and
checklists that are made or received pursuant to law or in connection with the transaction of
official business would be considered records.
Completion dates have been extended.
Recommendation:
Page 14 of 54
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Recommendation
MDNR should ensure their record retention procedures meets State law
and EPA regulations. MDNR will provide the following to EPA:
1) By June 1, 2022, submit to EPA a plan to address the disposition
of inspection notes, checklists, and other materials used to create
an inspection report. Include in this plan a timetable to consult
with MDNR attorney/counsel to ensure record
disposition/retention meets State record keeping requirements and
EPA regulations.
2) Report to EPA quarterly (January 15, April 15, July 15, and
October 15) on the actions taken to address this finding; and,
3) Correct/update wording in the PACE manual, submit to EPA for
review. Include revisions with a quarterly update.
4) If by September 30, 2023, EPA reviews the disposition of 5 closed
inspection reports and associated documentation
(records/checklists/fieldnotes etc.) and finds the inspections having
proper documentation/records retention at a performance level of
85% or greater metric finding, the region will close this finding.
Otherwise, the recommendation will remain open until the next
quarter/fiscal year upon which 5 more closed inspection reports
will be reviewed.
CWA Element 2 - Inspections
Finding 2-4
Area for Attention
Recurring Issue:
No
Summary:
Inspection reports do not consistently meet the 30-day deadline.
Explanation:
EPA reviewed 83 inspection reports. MDNR averaged 24 days for all 83 reports, however the
percentage of inspection reports issued within 30 days was 75.9 %. The Procedures for Assistance,
Compliance, and Enforcement (PACE) manual calls for inspections to be transmitted within 30
days of the inspection. MDNR has made improvements in this area. For the last review (Round 3)
the average time to complete a report was 44 days. For this review the average time was 24 days.
This is a reoccurring issue from the 2013 SRF review, although at that time the finding was an
area for improvement.
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Due Date
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1 09/30/2023
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EPA suggests supervisors make staff aware of the expected timeframe. Continue to monitor
timeliness.
Relevant metrics:
Metric ID Number and Description
6b Timeliness of inspection report completion
| [GOAL]
State Response:
Please reference General Comment No. 1 above. Department staff understand that the goal is
for reports to be issued within 30 days of the inspection. The use of the terms "completion"
and "transmittal" is less clear. We suggest using the term "issuance" throughout the
explanation of the finding.
As additional background, the Department operates within regional boundaries, with each
region having its own review, approval, and issuance process for inspection reports. One of
the Department's regions, Central Field Operations, is new and does not yet have a complete
team. Lack of supervisors in that region resulted in increased delays in processing of
inspection reports. This likely contributed to a number of reports being issued more than 30
days after inspection. However, it is acceptable for inspectors to exceed the 30-day goal in
certain situations per Section 4.1 of the PACE Manual: "If staff anticipates the report cannot
be written,administratively reviewed, and mailed within 30 days of the completion of the field
activity, notice and justification must be provided to supervisory staff."
EPA RESPONSE TO STATE COMMENTS:
This was found to be an Area of Attention and therefore no additional follow-up is planned by
EPA. We encourage MDNR to follow the PACE manual and strive to complete/issue the
inspection reports in 30 days or less as prescribed in the PACE manual.
No changes will be made to the current text.
Natl Natl State State State
Goal Avg N D Total
100% j J 63 , 83 j 75.9%
CWA Element 3 - Violations
Finding 3-1
Meets or Exceeds Expectations
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Recurring Issue:
No
Summary:
The majority of inspection reports reviewed were determined to have made accurate compliance
determinations.
Explanation:
EPA reviewed 85 inspection reports. 79 of these inspection reports were determined to have
accurate compliance determinations. MDNR's Procedures for Assistance, Compliance, and
Enforcement (PACE) manual format for inspections was followed.
While not goal metrics, EPA notes that Review indicators for MDNR (7kl and 8a3) exceed the
National average as shown in the relevant metric table below.
Relevant metrics:
7e Accuracy of compliance determinations
[GOAL]
100%
79
85
7j 1 Number of major and non-major facilities
with single-event violations reported in the
review year.
Review
Indicator
964
7kl Major and non-major facilities in
noncompliance.
Review
Indicator
18.40%
4570
10553
8a3 Percentage of major facilities in SNC and
non-major facilities Category I noncompliance
during the reporting year.
Review
Indicator
5.10%
2359
10145
State Response: None
CWA Element 4 - Enforcement
Finding 4-1
Page 17 of 54
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Area for Improvement
Recurring Issue:
Recurring from Round 3
Summary:
Regarding metric 9a, MDNR's informal and formal enforcement actions do not always bring a
facility back into compliance (Area for improvement in Round 3). Regarding metric 10b,
enforcement actions reviewed by EPA did not meet the state enforcement response procedures
defined by their Procedures for Assistance, Compliance, and Enforcement (PACE) manual.
Explanation:
Out of 55 formal/informal enforcement actions reviewed, EPA was able to determine that 40
facilities returned to compliance. There was insufficient information in the file to determine if the
remaining 15 had returned to compliance for a 72.7 % compliance rate. For Round 3 this finding
was at 73%.
Out of 50 enforcement files reviewed, EPA determined that 30 addressed violations in an
appropriate manner according to the Procedures for Assistance, Compliance, and Enforcement
(PACE) manual. The remaining 20 files did not use the proper enforcement response as laid out in
the PACE manual. For instance, in one case the facility was inspected, and Group 1 violations
were noted, but issued an LOW. According to the PACE manual Group 1 violations call for an
RNOV to be issued to the facility. Another inspection revealed Group 1 violations but issued an
Unsatisfactory letter (which is typically used with Group 3 violations).
The Pre-treatment review noted that responses to LOW or similar documents were all tracked and
once the facility had corrected all the deficiencies, a return to compliance letter was issued.
The EPA noted the following trend in MDNR enforcement action numbers from 2015 to 2019.
This information was taken from MDNR enforcement website. Reviewing MDNR's formal
enforcement actions from 2015 to 2019 reveals the following:
2015 -70 formal enforcement actions
2016-71 formal enforcement actions
2017 -32 formal enforcement actions
2018-41 formal enforcement actions
2019 -19 formal enforcement actions.
The number of enforcement actions appears to be trending downward for the last five-year period.
MDNR should continue to pursue enforcement actions where warranted and follow their
Procedures for Assistance, Compliance, and Enforcement (PACE) manual.
EPA requests that MDNR ensure facilities return to compliance and staff put documentation in the
file which clearly shows the facility has returned to compliance.
Relevant metrics:
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Metric ID Number and Description
Natl
Goal
Natl
Avg
State
N
State
D
State
Total
9a Percentage of enforcement responses that
returned, or will return, a source in violation to
compliance [GOAL]
100%
40
55
72.7%
lOal Percentage of major NPDES facilities with
formal enforcement action taken in a timely
manner in response to SNC violations
Review
Indicator
14.4%
0%
10b Enforcement responses reviewed that address
violations in an appropriate manner [GOAL]
100%
30
50
60%
State Response:
Please reference General Clarification Request Nos. 1 and 3 and General Comment No. 1
above.
Regarding the comment on proper enforcement response, the PACE Manual is general
guidance that allows staff to deviate from standard procedures in situations that require case-
by-case evaluations, as outlined in Section 1 on page 1 of the PACE Manual. As a result, the
PACE Manual offers flexibilities to use enforcement discretion on which type of informal
enforcement action is appropriate, if any. The Department considers the factors around the
case when determining whether or not an official letter is appropriate. Some circumstances
warrant deviations from the procedure outlined in the PACE Manual. Note that violations can
be referred for formal enforcement action immediately if there is a direct threat to human
health or the environment, such as a discharge resulting in a fish kill or a spill involving a
toxic substance.
With regard to EPA's comment on the number of formal enforcement actions, while it is true
that the number of formal enforcement actions has decreased between 2015 and 2019, it is
also true that the number of active enforcement cases decreased from 571 to 433 cases. This
is by design, to a significant degree, because just as EPA shifted from National
Enforcement Initiatives to National Compliance Initiatives, the Department also adopted
a policy of increased emphasis on compliance assistance. Compliance assistance requires
much more interaction with the responsible party prior to issuance of informal or formal
enforcement actions. If we can correct the violations before they rise to the level of SNC, we
also reduce the need for formal enforcement actions. Should the Department's compliance
assistance efforts not result in compliance, the case is escalated through a series of steps,
regardless of the severity of the violation(s). This progression starts with an Unsatisfactory
Finding Letter or a Letter of Warning(LOW), followed by a Notice of Violation (NOV), then
a Referral Notice of Violation, and finally, formal enforcement action. Multiple LOWs or
NOVs may be issued prior to escalating tothe next level of enforcement action. There is one
exception to this rule, in which violations can be referred to enforcement immediately if
there is a direct threat to human health or the environment, such as a discharge resulting in a
Page 19 of 54
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fish kill.
In addition, enforcement staff have been asked to put extensive effort into EPA's SNC
National Compliance Initiative. Effectively addressing SNC requires a balance of
enforcement and compliance assistance. The Department feels that increasing compliance
assistance activities better aligns with the EPA's 2018 to 2022 Strategic Plan to emphasize
compliance assistance efforts. This better conveys the message that increased compliance is
the goal and that enforcement actions are not the only tool for achieving compliance.
The Department is committed to taking all appropriate enforcement actions while increasing
compliance assistance activities, within the constraints of finite staffing resources. It is a
question of the balance that will yield the greatest compliance. The Water Pollution Control
Branch's Compliance and Enforcement Section had 432 enforcement cases in FFY19. This
resulted in an average of over 58 cases for each case manager. Even supervisors handle a
number of cases to distribute the burden.
Another factor is the significant turnover during this time period as the Section Chief, one
Unit Chief, and four case managers retired or left the section in late 2018 or 2019.
Additionally, in 2018 and 2019, the Department has increased its emphasis on quality and
consistency in enforcement actions. Producing higher-quality enforcement actions and
increasingconsistency across the different environmental media is providing long-term
benefits, but the process of adjustment required significant focus and time.
Regarding the recommendation/requirement, prior to committing to a corrective action
schedule,the Department would like to understand how EPA came to its finding for this
element. We would like to see the examples where the escalation was deemed inadequate
according to EPA. This will help us either provide better explanations for decisions that may
appear to deviate from the PACE Manual or make appropriate adjustments.
EPA RESPONSE TO STATE COMMENTS:
EPA understands the needfor enforcement discretion. However, the deviations from the PACE
manual noted in the files reviewed were substantial. EPA discussed 3 examples related to this
finding with MDNR staff on September 1, 2021. Most noteworthy were files where the inspection
noted a sheen or some other serious violation and an "Unsatisfactory letter" or "Letter of
Warning" was issued to the facility as follow-up. These were clear level one violations, but the
follow-up was not commensurate with the violation found. As the PACE manual states in Section
4.5-Noncompliance Process, Violation Groups (Page 1) "Group 1 violations are the most
serious and significant impacts or threats to human health and the environment". The manual
goes on to states that "These violations must be addressed through the issuance of a Referral
Notice of Violation (RNOV) and by immediate referral for program enforcement action".
Timeframes for completion were adjusted in SRF writeup.
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Recommendation:
Recommendation
MDNR should ensure that staff are following the PACE manual and
pursue appropriate enforcement based upon the severity of the violations
found during the inspection. MDNR will provide the following to EPA:
1) Submit a response to EPA that discusses how the PACE manual is
being implemented. Provide with the first quarterly response.
2) Report to EPA quarterly (January 15, April 15, July 15, and
October 15) on the actions taken to address this finding.
3) Provide examples/documentation of 5 inspection/enforcement
actions (3 informal/2 formal) that were completed in FY22-FY23
that adhere to the PACE manual and also provide documentation
that the facility has returned to compliance. Provide a workflow
discussion on how the PACE manual was utilized in the examples
submitted to EPA.
4) If by September 30, 2023, EPA reviews 5 informal/formal actions
and finds that proper follow-up in accordance with the PACE
manual has been completed and provide documentation that the
facility has returned the facility to compliance at a level of 85% or
greater metric finding, this finding will be closed. Otherwise, the
recommendation will remain open until the next quarter/fiscal year
upon which 5 more informal/formal actions will be reviewed.
CWA Element 4 - Enforcement
Finding 4-2
Area for Improvement
Recurring Issue:
No
Summary:
MDNR is not applying the Pretreatment regulations appropriately.
Explanation:
Of the eight audits/PCIs reviewed, one City was determined to have violations significant enough
to be considered in Significant Noncompliance, which was met with a Letter of Warning, a
Page 21 of 54
Due Date
#
1 09/30/2023
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relatively weak response for violations as serious as SNC. However, the City responded
responsibly to the LOW and hired a consultant to correct the deficiencies behind the SNC
determination.
Cabool - The inspection report indicated that a contributing industry, Dairy Farmers of America,
had been discharging slug loads of high strength wastes. At the time of the inspection, the primary
cell was observed to be a milky color and foul smelling, which is clearly a case of interference.
The report dwelled on the city trying to solve the problem of disruptive discharges by modifying
its Sewer Use Ordinance to give it more enforcement authority. There was no recognition in the
report that MDNR is the Control Authority under the Pretreatment program and has the
responsibility of enforcing directly against the industry causing the interference.
Dexter East - The inspection noted the inability of the POTW to achieve compliance with
ammonia limits and provided an engineering report confirming it. The inspection noted the cause
was from discharges from Tyson and referenced that the City was under an abatement order to
achieve compliance. The abatement order is likely more than five years old as it no longer shows
up in ECHO. No attempt was made during the inspection to compare City performance with
requirements of the abatement order milestones. As with Cabool, there was no recognition by the
inspector that MDNR, by regulation, is the Control Authority for Tyson and has the regulatory
obligation to take direct action against Tyson to eliminate the interference and/or pass through they
are causing at Dexter East.
Piedmont - The City of Piedmont has been a perennial problem due to discharges from a fried
foods industry. While the City's poor compliance status is exacerbated by poor operation and
maintenance of its relatively new plant, failure to adequately control discharges from the industry
is a maj or factor for the city' s noncompliance. The inspection report and other documents reviewed
indicated that it is MDNR's position that it was primarily the City's responsibility to bring the
industry into compliance. However, additional documents supplied for the SRF indicated that
MDNR finally approached the industry directly by issuing them an NOV on February 20, 2020.
The NOV to Today's Foods dated February 20, 2020 was the proper response for any facility
causing interference and or pass through where MDNR is the Control Authority. It should be used
as a model for addressing all instances interference/pass through.
It should be noted that in all the inspections and enforcement actions taken in FFY 2019, it was
recognized that the industry contributed significantly to the City's noncompliance, but none of the
correspondence between the MDNR field office officially copied the MDNR's Pretreatment
Program. It should be a matter of routine that whenever an industrial source is involved in any way
in a City's noncompliance, the Pretreatment program be notified immediately.
Relevant metrics:
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Metric ID Number and Description
Natl
Goal
Natl
Avg
State
N
State
D
State
T otal
10b Enforcement responses reviewed that address
violations in an appropriate manner - Pretreatment
Program
100%
5
8
62.5% |
State Response:
Escalation of noncompliance related to pretreatment follows the same progression outlined in
the response to Finding 4-1.
Regarding the recommendation/requirement, the Department has already begun making
improvement to enforcement of the pretreatment program. This issue is a topic of quarterly
pretreatment coordination meetings, where training and discussion occur between the
Pretreatment Coordinator and pretreatment inspectors. Additionally, the Pretreatment
Coordinator has updated a guidance document that delineates roles and responsibilities for the
various team members across the state that deal with implementation and enforcement of the
pretreatment program. To build upon these education and training efforts, we will be
generating an informational email to distribute to all regions informing them of the
Department's obligation to evaluate compliance with pretreatment regulations at
municipalities that do not have approved pretreatment programs. Though such an email may
be an immediate response to this issue, the Department recognizes that it will take time to
effect changes necessary to properly enforce the program.
The Department's Pretreatment Coordinator is also working with our Operating Permits
Section to generate more robust permitting requirements related to pretreatment. This will
assist inspectors in identifying compliance issues and taking appropriate enforcement actions.
See the following excerpt from the Permitting Quality Review (PQR) on pretreatment that
will better inform and assist inspectors in addressing pretreatment at applicable facilities:
The Industrial Pretreatment Program (IPP) is committed to coordinating with
the NPDES Permit Section. We will address this noted deficiency in the new
procedure, "Industries Discharging to POTWs without Approved Programs:
NPDES Application Review and Notification RequirementsThe new
procedurewill ensure continued coordination, information sharing, technical
knowledge transfer, and application completeness. In addition, we propose to
update the application form to make clearer the requirements of the
pretreatment program and need for the lists of industrial users. In addition to
the essential action item, the above procedure will address the
recommendations that the Department 1) develop "a way to confirm
statements made by cities that no industrial wastes are discharged to them"
and 2) "study how to utilize information reported in Part F of the permit
application. All information provided on any industrial users should be shared
with the Pretreatment Coordinator as a matter of routine." First,using the
search for industries processes noted in the PQR we have incorporated those
processes in the above procedure. Second, the procedure will request that
Page 23 of 54
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during completeness review the permit writer coordinate with the IPP
coordinator when the application lists industries. When the application lists
industries, the IPP coordinator will assist the permit writer in notifying the
Publicly Owned Treatment Works (POTW) and/or industry of the
requirements under the pretreatment program. Depending on the industry, we
should include a special condition [and the factsheet] in the permit that
acknowledges the presence of industry and that the Department is the control
authority over that discharge under 40 CFR 403. As applied in past POTW
permits, the special condition could also address problem [food] industries
with additional pretreatment-related requirements that protect the POTW from
experiencing pass through and interference.
With increased knowledge and understanding, the Department is confident that this issue is
already being addressed; however, we feel it will take time to fully educate all inspection staff
and incorporate pretreatment compliance evaluations into the normal course of business. Over
the next two years, we will attempt to provide five examples of proper inspection and/or
enforcement actions related to pretreatment at municipalities where the Department is control
authority. If we need more time, we request the flexibility to obtain extensions to the proposed
schedule for corrective actions.
EPA RESPONSE TO STATE COMMENTS:
EPA acknowledges the effort that MDNR is undertaking to address the pre-treatment issues
found during the SRF review.
Timeframes for completion were adjusted in the writeup.
Recommendation:
Page 24 of 54
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Ucc
#
Due Date
Recommendation
MDNR should ensure appropriate application of the Pretreatment
regulations are implemented following a Pretreatment inspection. MDNR
will provide the following to EPA:
1) Submit a response with the first quarterly report to EPA that
discusses the how the Pretreatment regulations are being
implemented. Discuss changes that need to occur to ensure that
MDNR is using its control authority and pursuing enforcement
where appropriate.
2) Report to EPA quarterly (January 15, April 15, July 15, and
October 15) on the actions taken to address this finding.
3) Provide examples/documentation of 5 pre-treatment
inspection/enforcement actions that were completed in
FY22/FY23 that adhere to the PACE manual and/or MDNR's pre-
treatment control authority.
4) If by September 30, 2023, EPA reviews 5 pre-treatment
inspections/enforcement actions and finds that proper follow-up in
accordance with the PACE manual and/or MDNR's pre-treatment
control authority has been completed at a level of 85% or greater
metric finding, this finding will be closed. Otherwise, the
recommendation will remain open until the next quarter/fiscal year
upon which 5 more pre-treatment inspections/enforcement actions
will be reviewed.
CWA Element 5 - Penalties
Finding 5-1
Area for Improvement
Recurring Issue:
Recurring from Round 3
Summary:
MDNR did not always complete penalty calculations that document and include economic benefit.
Explanation:
Out of the 8 files EPA reviewed, four had information which included economic benefit.
This is a repeat finding from both FY09 and FY13 SRF (Finding 5-1) reviews. As a result of the
FY13 SRF review, MDNR developed a penalty matrix worksheet which included a section for
economic benefit.
Page 25 of 54
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For the FY19 review, one file showed $1500 for economic benefit but no explanation of how
$1500 was arrived at. For the same case, an updated penalty matrix had "0" for economic benefit
and the explanation that economic benefit was negligible. This facility had 50 acres with few
controls so it is unlikely that economic benefit costs would be negligible.
Another file reviewed revealed a memo in the file states that shows a gravity penalty of $1,257,458
was calculated while economic benefit was $0. For the same file, the solid waste program
calculated economic benefit at $2,652,595 for improper waste disposal. The economic benefit was
not included in the penalty. No reason was given for selecting $0 economic benefit in the penalty
matrix.
In another case economic benefit was not considered in the penalty calculation. Statement from
the penalty calculation sheet indicated "No penalty modifiers were applied, and no economic
benefit was determined". No justification was provided to explain why no economic benefit was
determined.
Relevant metrics:
... , . Ir. .. , . ,, . Natl Natl State State State
Metric ID Number and Description , ¦ . ... _ ,
1 Goal Avg N D Total
1 la Penalty calculations reviewed that document and linn"/ 1 a 8 1 ^n°/
include gravity and economic benefit [GOAL] | ° j °
State Response:
Please reference General Clarification Request No. 3 above. To date, the Department
primarily uses the avoided costs of annual permit fees and the avoided costs of sampling to
calculate the economic benefit of noncompliance for:
A. Operating without a permit, which includes facilities that have never been
permitted and facilities that fail to renew their permit. Some facilities that fail to
renew a permit will continue to pay annual permit fees and submit Discharge
Monitoring Reports (DMRs). In that case, those facilities have not gained any
economic benefit by operating without a permit.
B. Facilities that have failed to submit DMRs or have submitted incomplete DMRs.
To be clear, if a facility has an active or administratively continued permit and has not paid
annual permit fees for one or more years, that facility's failure to pay its annual permit fees is
a separate liability and is not considered a penalty or economic benefit, making the statute of
limitations 5 years. However, if the facility never had a permit or if the permit is expired and
not administratively continued, then we would not have sent an invoice for the permit fees and
must instead include the avoided costs of fees in the economic benefit component of the
penalty. In that event, because the unpaid permit fees are considered a penalty, our statute of
Page 26 of 54
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limitations is only 2 years. To calculate the amount owed, we consult the Department's
schedule for permit fees and multiply the appropriate permit fee by the number of years that
the facility did not pay fees, for up to 2 years.
Additionally, the Department has a spreadsheet that we use to estimate the cost of sampling
and analysis for missing DMRs where samples were neither collected nor analyzed. We
update the costs used to determine economic benefit by averaging the amounts charged by
laboratories across Missouri. When this spreadsheet is used it is attached to the penalty
matrix. If EPA can assist the Department in identifying additional factors that could be
considered when calculating the economic benefits of noncompliance, we would be happy to
consider incorporating those factors into our procedures. The Department strongly believes in
the need to maintain a level playing field for businesses, municipalities, and others, who, as
part of doing business, operate potential water pollution sources.
The Department's Water Pollution Control Branch has no control or authority over the
Department's Waste Management Program and its calculation of economic benefit costs, nor
do we have the authority to develop policies for Department-wide application. If we are
correctly guessing which multi-media case is referenced in your example, the Water Pollution
Control Branch did not have any identifiable economic benefit, however, the Waste
Management Program was able to calculate economic benefit related to the tipping costs that
were avoided for solid waste that should have been landfilled. The Department has since
referred that matter to theMissouri Attorney General's Office, which then filed a lawsuit
against the violator to compel compliance and recover penalties, including economic benefit.
That lawsuit is ongoing. If this SRF review had been conducted in person, we think that
communication between EPA and the Department would have provided a better explanation
for the decisions related to this complex multi-media case.
Regarding the recommendation/requirement, the Department feels we have already made the
necessary adjustments to address this element. The Excel spreadsheet we use for our Penalty
Matrix includes a tab showing how to calculate the economic benefit as well as a section
within the final calculation for entry of the total amount of economic benefit. These changes
occurred as a result of the previous SRF review. Likewise, the Department provides reasoning
within the associated Summary in the Penalty Matrix that outlines the enforcement case. This
narrative addresses both the penalty and any economic benefit that may have been added.
After this most recent review, staff received additional training on the use of the Penalty
Matrix with special emphasis on economic benefit. The Department would like to submit an
alternative set of corrective actions for this finding. We propose providing the templates
immediately and then submitting five examples of cases that address this element as soon as
possible, without having to provide quarterly progress reports.
EPA RESPONSE TO STATE COMMENTS:
EPA requests MDNR consistently use the penalty format that was put in place after the last
SRF review (Round 3). Provide justification/rationale when zero is determined to be the
economic benefit. Provide justification/rationale on why any of the three exclusions are
selected.
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Timeframes for completion were adjusted in the SRF writeup.
Recommendation:
Recommendation
| As a result of the FY13 SRF review, MDNR developed a penalty matrix
[ worksheet that includes a section for economic benefit. MDNR should
j ensure all staff evaluate, complete, and document their
j rationale/justification for the economic benefit portion of the penalty
j matrix. MDNR will provide the following to EPA:
[ 1) Report to EPA quarterly (January 15, April 15, July 15, and
[ October 15) on the actions taken to address this finding,
j 2) By 4/29/22, provide to EPA a penalty matrix form with a revised
j economic benefit section, which allows for additional space to
j provide for an explanation/justification as to how economic benefit
was determined or why a certain exclusion box was
checked/selected.
3) By September 30, 2023, provide examples/documentation of 5
enforcement actions that were completed in FY22-23 that
document economic benefit using the revised form.
4) If by September 30, 2023, EPA reviews 5 submitted enforcement
actions which document economic benefit was calculated/justified
at a level of 85% or greater metric finding, this finding will be
closed. Otherwise, the recommendation will remain open until the
next quarter/fiscal year upon which 5 more enforcement actions
will be reviewed.
CWA Element 5 - Penalties
Finding 5-2
Area for Improvement
Recurring Issue:
Recurring from Round 3
Summary:
EPA reviewers were not able to locate documentation that explained the difference between the
initial and final penalty in the files reviewed.
Due Dale
#
09/30/2023
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Explanation:
Out of 8 files EPA reviewed, five had rationale for difference between initial and final penalty,
while three did not have any documentation. This is a repeat finding from the FY13 SRF review.
As a result of this review, MDNR developed a penalty memo to explain the rationale/change from
the initial penalty to the final penalty.
Relevant metrics:
Metric ID Number and Description
12a Documentation of rationale for difference between
initial penalty calculation and final penalty [GOAL]
Natl : Natl State State State
Goal Avg N D Total
100%
8 , 62.5%
State Response:
The Department acknowledges the need to improve documentation of changes to penalty
amounts that occur through internal and external negotiations.
Regarding the recommendation/requirement, the Department feels that we have already made
the necessary adjustments to address this element and agrees to the corrective actions outlined
in the Draft Report.
EPA RESPONSE TO STATE COMMENTS:
During the September 1, 2021 conference call between MDNR and EPA, MDNR explained that
they are not using the penalty memo anymore, but revised the penalty matrix form (inserted a
box) in the penalty memo to provide a narrative to document this change. MDNR will submit 5
penalty matrix form writeups that include this documentation as stated in the timeframes in the
Recommendation. Broadened writeup to include references to other documentation that MDNR
is now using to document changes.
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Recommendation:
Recommendation
MDNR developed a penalty memo in response to the FY13 SRF Review.
This memo explains the rationale/difference between the initial and final
penalty numbers. MDNR should ensure all staff are aware of this format
and utilize it to document the rationale between the initial and final
penalty.
MDNR should ensure that staff are consistently using the penalty memo
that was developed in response to the 2013 SRF review. MDNR will
provide the following to EPA:
1) By September 30, 2023, provide examples/documentation of 5
enforcement actions to EPA that were completed in FY22-23 that
document the rationale (penalty memo) or utilize other
documentation for the change from initial to final penalty.
2) If by September 30, 2023, EPA reviews 5 MDNR submitted
enforcement actions, which include the penalty memo or other
documentation (revised penalty matrix form) explaining/justifying
the difference between the initial and final penalty at a level of
85% or greater this finding will be closed. Otherwise, the
recommendation will remain open until the next quarter/fiscal year
upon which 5 more examples of penalty rationale documentation
will be reviewed.
CWA Element 5 - Penalties
Finding 5-3
Meets or Exceeds Expectations
Recurring Issue:
No
Summary:
MDNR consistently documents the penalty payment information.
Explanation:
EPA reviewed 8 files for appropriate documentation that penalties have been collected. 7 of 8 files
had this documentation (emails, cancelled checks, memos).
1 Due Date
#
1 09/30/2023
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Relevant metrics:
Metric ID Number and Description
Natl : Natl State State State
Goal Avg N D Total
12b Penalties collected [GOAL]
100%
8 [ 87.5%
State Response: None
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Appendix 1
Missouri Department of Natural Resources' Response Letter
dnr.mo,gov
¦ff\ natural resources
il 1 Michael L. Parson, Governor *. m i n r *¦
May 20, 2021
David Cozad, Director
Enforcement and Compliance Assurance Division
Environmental Protection Agency, Region 7
11201 Renner Boulevard
Lenexa, KS 66219
RE: Comments on the Missouri Clean Water Act Federal Fiscal Year 2019 State Review
Framework Draft Report
Dear David Cozad:
Thank you for providing the Missouri Department of Natural Resources the opportunity to
review and comment on the Federal Fiscal Year 2019 (FFY19) State Review Framework (SRF)
Draft Report. The Department acknowledges the need to improve implementation of compliance
activities and appreciates the opportunity to collaborate on refining our enforcement of the
National Pollutant Discharge Elimination System program.
The Department provides our responses, comments, and clarification needs below, The following
comments are formatted to follow the structure of the Clean Water Act iCWM Findings section
of the Draft Report in an effort to ease Environmental Protection Agency's (EPA's) review. Only
those elements that the Department had comments on are addressed. The Department requests
that EPA supply a revised Draft Report for review prior to issuing a final report.
State and EPA key contacts for review:
The Department requests that EPA add the following individuals to the list of key contacts for
review found on page 4 of the report,
Joel Reschly, Department of Natural Recourses, Legal Counsel, General Counsel's
Office
Ed Galbraith, Department of Natural Recourses, Director, Division of Environmental
Quality
Additionally please correct the spelling of Kristi Savage-Clarke's last name and her position title
to Environmental Program Manager,
o
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David Cozad
Page 2
General Clarification Request No. 1
The Department would like to understand the origin of the metrics evaluated in the Draft Report
so that we can begin to better align strategy and implementation with federal expectations. In the
introduction sections of the report, EPA explains that it uses "a standardized set of metrics to
evaluate [delegated states'] performance against performance standards laid out in federal
statute, KPA regulations, policy, and guidance." "llie Department requests thai the report include
citations to the specific federal statutes, regulations, policies, and guidance documents that
contain or describe these performance standards.
General Clarification Request No. 2
The Department has a general request that will help us understand the areas of attention and
improvement better so that we can make appropriate adjustments in the coming years. For
Findings 1-1, 1-2, 2-4, 4-1, 4-2, and 5-1 , we request that EPA provide a list of the files/facilities
you reviewed and indicate whether or not they met performance expectations. For all Findings
listed above except for Finding 4-2, we further request that EPA select and provide three specific
examples from each of the lists to help provide further context and understanding.
General Comment No. 1
Thank you for the useful observations regarding adherence to the Department's Procedures for
Assistance, Compliance and Enforcement (PACK) Manual. We will address these as appropriate.
However, we disagree that these observations should be included as SRF "findings,"' as the
PACE Manual itself is not a federal law, rule, policy, or guidance. The majority of the
procedures in the PACE Manual are internal guidance to assist Department staff in carrying out
their duties. For the most part, it does not establish strict standards of performance, but guidance
that offers flexibilities allowing staff to respond appropriately in a variety of scenarios. The
Department reserves the right to deviate from guidance as conditions warrant. Therefore, the
PACE Manual is only relevant to the SRF to the extent KPA is evaluating whether the guidance
in the PACE Manual itself is consistent with federal standards, such as retention of field notes.
General Comment No. 2
The EPA has clarified that all the recommendations listed under each element rated as an Area
for Improvement are in fact required actions. The Department requests that the language be
changed to reflect that these corrective actions are "required" rather than "recommended."
Consistent with our request above, we would ask that if there is federal statute, regulation, and/or
policy that requires the element or corrective actions, please note that under each Area of
Improvement so that the report is clear as to the di I Terence between required actions and
recommendations.
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David Cozad
Page 3
Additionally, the Department would like flexibility to reevaluate efforts to achieve milestones
and make appropriate adjustments to goals and/or extensions to timelines in response to
unforeseen barriers.
CWA Element 1 Data
Finding 1-2
Please reference General Clarification Request Nos. 1 and 3 above. Without a detailed list of
what was missing, we cannot determine whether the missing data was a data entry failure or a
rejection from the Integrated Compliance Information System (ICIS).
As EPA is aware, Missouri is a batch data submission state and there are still data transfer issues
betw een our Missouri Clean Water Information System (MoCWIS) and EPA's
ICIS Enforcement and Compliance History Online. We are still experiencing r ejection of some
data during batching. The Department appreciates EPA providing additional access to its data
contractor, Windsor Solutions. Windsor has run another analysis based on some data identifying
specific groups of data rejected by ICIS.
Regarding consistent identilication of single-event violations (SEW) as either significant
noncompliance (SNC) or non-SNC. the Department belie\es that EPA's expectations may not be
within the Department's reach. Although MoC WIS is transferring SEVs to ICIS. the Department
is still unable to identity which SEYs are SNC in MoCWIS. One complicating factor is that
EPA's Single Event Violation Data Entry Guide lor ICIS-NPDES does not identify which of the
168 SEYs should be considered SNC. Another complication is that the Department will need to
make significant enhancements to MoCWIS in order to meet this expectation. Compounding
those issues further, it's the Department's understanding that ICIS itself does not have the
functionality to identify that an SEV is SNC and could not accept that data from MoCWIS even
if we were able to enhance the database.
If EPA continues to require that the Department meet this expectation, we ask that EPA provide
the following resources: 1) training on SEVs, particularly regarding which SEVs are SNC and
how to identify them in the field; 2) enhancement to ICIS in order to accept SEV SNC records;
and 3) ongoing assistance to the Department in overcoming unforeseen barriers that may arise
during fulfillment of this obligation. The time commitment necessary to either enhance the
Department's MoCWIS database or manually enter SEV data into ICIS would greatly reduce the
Department's ability to complete enforcement actions.
Regarding the recommended/required milestones, the Department is hesitant to commit to any
schedule for corrective action until we better understand the data discrepancies resulting in
EPA's finding for this element.
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David Cozad
Page 4
CWA Element 2 - Inspections
Finding 2-3
Please reference General Clarification Request No. 1 and General Comment No. 1 above. As
noted in EPA's report, our PACE Manual contains the current procedure for disposition of field
notes. At this time, a legal review of our field note retention policy is not scheduled. If the
current policy does not meet federal law. please provide that information. Otherwise, we request
EPA withdraw the recommendation on this finding.
Finding 2-4
Please reference General Comment No. 1 above. Department staff understand that the goal is for
reports to be issued within 30 days of the inspection. The use of the terms "completion" and
"transmittal" is less clear. We suggest using the term "issuance" throughout the explanation of
the finding.
As additional background, the Department operates within regional boundaries, with each region
having its own review, approval, and issuance process for inspection reports. One of the
Department's regions. Central Field Operations, is new and does not yet have a complete team.
Lack of supervisors in that region resulted in increased delays in processing of inspection
reports. This likely contributed to a number of reports being issued more than 30 da\s after
inspection. However, it is acceptable for inspectors to exceed the 3t)-day goal in certain
situations per Section 4.1 of the PACE Manual: "If staff anticipates the report cannot be written,
administratively reviewed, and mailed within 30 days of the completion of the Held activity,
notice and justification must be provided to supervisory staff."
CWA Element 4 - Enforcement
Finding 4-1
Please reference General Clarification Request Nos. 1 and 3 and General Comment No. 1 above.
Regarding the comment on proper enforcement response, the PACE Manual is general guidance
that allows stall'to deviate from standard procedures in situations that require case-bv-ease
evaluations, as outlined in Section I on page 1 of the PACE Manual. As a result, the PACE
Manual oilers flexibilities to use enforcement discretion on which type of informal enforcement
action is appropriate, if any. The Department considers the factors around the case when
determining whether or not an official letter is appropriate. Some circumstances warrant
deviations from the procedure outlined in the PACK Manual. Note that \ iolations can be referred
for formal enforcement action immediately if there is a direct threat to human health or the
environment, such as a discharge resulting in a fish kill or a spill involving a toxic substance.
With regard to EPA's comment on the number of formal enforcement actions, while it is true
that the number of formal enforcement actions has decreased between 2015 and 2019, it is also
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David Cozad
Page 5
true that the number of active enforcement cases decreased from 571 to 433 cases. This is by
design, to a significant degree, because just as EPA shifted from National Enforcement
Initiatives to National Compliance Initiatives, the Department also adopted a policy of increased
emphasis on compliance assistance. Compliance assistance requires much more interaction with
the responsible party prior to issuance of informal or formal enforcement actions. If we can
correct the violations before they rise to the level of SNC, we also reduce the need for formal
enforcement actions. Should the Department's compliance assistance efforts not result in
compliance, the case is escalated through a series of steps, regardless of the severity of the
violations). This progression starts with an Unsatisfactory Finding Letter or a Letter of Warning
(LOW), followed by a Notice of Violation (NOV), then a Referral Notice of Violation, and
finally, formal enforcement action. Multiple LOWs or NOVs may be issued prior to escalating to
the next level of enforcement action. There is one exception to this rule, in which violations can
be referred to enforcement immediately if there is a direct threat to human health or the
environment, such as a discharge resulting in a fish kill.
In addition, enforcement staff have been asked to put extensive effort into EP.Vs SNC National
Compliance Initiative. Effectively addressing SNC requires a balance of enforcement and
compliance assistance. 'Hie Department feels that increasing compliance assistance activities
better aligns with the EPA's 2018 to 2022 Strategic Plan to emphasize compliance assistance
efforts. This better conveys the message that increased compliance is the goal and that
enforcement actions are not the only tool for achieving compliance.
The Department is committed to taking all appropriate enforcement actions while increasing
compliance assistance activities, within the constraints of finite staffing resources. It is a question
of the balance that will yield the greatest compliance. The Water Pollution Control Branch's
Compliance and Enforcement Section had 432 enforcement cases in FFY19. 'This resulted in an
average of over 58 cases for each case manager. Even supervisors handle a number of cases to
distribute the burden.
Another factor is the significant turnover during this time period as the Section Chief, one Unit
Chief, and four case managers retired or left the section in late 2018 or 2019.
Additionally, in 2018 and 2019, the Department has increased its emphasis on quality and
consistency in enforcement actions. Producing higher-quality enforcement actions and increasing
consistency across the different environmental media is providing long-term benefits, but the
process of adjustment required significant focus and time.
Regarding the recommendation requirement, prior to committing to a corrective action schedule,
the Department would like to understand how EPA came to its finding for this clement. We
would like to see the examples where the escalation was deemed inadequate according to EPA.
This will help us either provide better explanations for decisions that may appear to deviate from
the PACE Manual, or make appropriate adjustments.
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David Cozad
Page 6
Finding 4-2
Escalation of noncompliance related to pretreatment follows the same progression outlined in the
response to Finding 4-1,
Regarding the recommendation requirement, the Department has already begun making
improvement to enforcement of the pretreatment program. This issue is a topic of quarterly
pretreatment coordination meetings, where training and discussion occur between the
Pretreatment Coordinator and pretreatment inspectors Additionally, the Pretreatment
Coordinator has updated a guidance document that delineates roles and responsibilities for the
various team members across the state that deal with implementation and enforcement of the
pretreatment program. To build upon these education and training efforts, we will be generating
an informational email to distribute to all regions informing them of the Department's obligation
to evaluate compliance with pretreatment regulations at municipalities that do not have approved
pretreatment programs. Though such an email may be an immediate response to this issue, the
Department recognizes that it will take time to effect changes necessary to properly enforce the
program.
The Department's Pretreatment Coordinator is also working with our Operating Permits Section
to generate more robust permitting requirements related to pretreatment. This will assist
inspectors in identifying compliance issues and taking appropriate enforcement actions. See the
following excerpt from the Permitting Quality Review (PQR) on pretreatment that will better
inform and assist inspectors in addressing pretreatment at applicable facilities:
"[Tie Industrial Pretreatment Program (IPP) is committed to coordinating with the
NPDES Permit Section. We will address this noted deficiency in the new
procedure. "Industrie* Discharging to I'DTIVs without. Ipproved Programs:
NPDF.S Application Review and Notification Requirements."' The new procedure
will ensure continued coordination, information sharing, technical knowledge
transfer, and application completeness, hi addition, we propose to update the
application form to make clearer the requirements of the pretreatment program
and need for the lists of industrial users. In addition to the essential action item,
the above procedure will address the recommendations that the Department
1) develop "a way to confirm statements made by cities that no industrial wastes
are discharged to them" and 2) "study how to utilize information reported in
Part F of the permit application. All information provided on any industrial users
should be shared with the Pretreatment Coordinator as a matter of routine." First,
using the search for industries processes noted in the PQR we have incorporated
those processes in the above procedure. Second, the procedure will request that
during completeness review the permit writer coordinate with the IPP coordinator
when the application lists industries. When the application lists industries, the IPP
coordinator will assist the permit writer in notifying the Publicly Owned
Treatment Works (PO'I'W) and/or industry of the requirements under the
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David Cozad
Page 7
pretreatment program. Depending on the industry, we should include a special
condition [and the factsheet] in the permit that acknowledges the presence of
industry and that the Department is the control authority over that discharge under
40 CFR 403. As applied in past POTW permits, the special condition could also
address problem [food] industries with additional pretreatment-related
requirements that protect the POTW from experiencing pass through and
interference.
With increased knowledge and understanding, the Department is confident that this issue is
already being addressed; however, we feel it will take time to fully educate all inspection staff
and incorporate pretreatment compliance evaluations into the normal course of business. Over
the next two years, we will attempt to provide five examples of proper inspection and/or
enforcement actions related to pretreatment at municipalities where the Department is control
authority. If we need more time, we request the flexibility to obtain extensions to the proposed
schedule for corrective actions.
CWA Element 5 Penalties
Finding 5-1
Please reference General Clarification Request No, 3 above. To date, the Department primarily
uses the avoided costs of annual permit fees and the avoided costs of sampling to calculate the
economic benefit of noncompliance for:
A. Operating without a permit, which includes facilities that have never been permitted
and facilities that fail to renew their permit. Some facilities that fail to renew a permit
will continue to pay annual permit fees and submit Discharge Monitoring Reports
(DMRs). In that case, those facilities have not gained any economic benefit by
operating without a permit.
B. Facilities that have failed to submit DMRs or have submitted incomplete DMRs.
To be clear, if a facility has an active or administratively continued permit and has not paid
annual permit fees for one or more years, that facility's failure to pay its annual permit fees is a
separate liability and is not considered a penalty or economic benefit, making the statute of
limitations 5 years. However, if the facility never had a permit or if the permit is expired and not
administratively continued, then we would not have sent an invoice for the permit fees and must
instead include the avoided costs of fees in the economic benefit component of the penalty. In
that event, because the unpaid permit lees are considered a penally, our statute of limitations is
only 2 years. To calculate the amount owed, we consult the Department's schedule for permit
fees and multiply the appropriate permit fee by the number of years that the facility did not pay
fees, for up to 2 years.
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David Cozad
Page 8
Additionally, the Department has a spreadsheet that we use to estimate the cost of sampling and
analysis for missing DMRs where samples were neither collected nor analyzed. We update the
costs used to determine economic benefit by averaging the amounts charged byr laboratories
across Missouri. When this spreadsheet is used it is attached to the penally matrix. If I'",FA can
assist the Department in identifying additional factors that could be considered 'when calculating
the economic benefits of noncompliance, we would be happy to consider incorporating those
factors into our procedures. "line Department strongly believes in the need to maintain a level
playing field for businesses, municipalities, and others, who, as part of doing business, operate
potential water pollution sources.
1'he Department's Water Pollution Control Branch has no control or authority over the
Department's Waste Management Program and its calculation of economic benefit costs, nor do
we have the authority to develop policies for Department-wide application. If we are correctly
guessing which multi-media case is referenced in your example, the Water Pollution Control
Branch did not have any identifiable economic benefit, however, the Waste Management
Program was able to calculate economic benefit related to the tipping costs that were avoided for
solid waste that should have been landfilled. Hie Department has since referred that matter to the
Missouri Attorney General's Office, which then filed a lawsuit against the violator to compel
compliance and recover penalties, including economic benefit. That lawsuit is ongoing. If this
SRF review had been conducted in person, we think that communication between EPA and the
Department would have provided a better explanation for the decisions related to this complex
multi-media case.
Regarding the recommendation/requirement, the Department feels we have already made the
necessary adjustments to address this element. "Hie Excel spreadsheet we use for our Penalty
Matrix includes a tab showing how to calculate the economic benefit as well as a section within
the final calculation for entry of the total amount of economic benefit. These changes occurred as
a result of the previous SRF review. Likewise, the Department provides reasoning within the
associated Summary in the Penalty Matrix that outlines the enforcement case. This narrative
addresses both the penalty and any economic benefit that may have been added. After this most
recent review, staff received additional training on the use of the Penalty Matrix with special
emphasis on economic benefit. The Department would like to submit an alternative set of
corrective actions for this finding. We propose providing the templates immediately and then
submitting five examples of cases that address this element as soon as possible, without having
to provide quarterly progress reports.
Finding 5-2
file Department acknowledges the need to improve documentation of changes to penalty amounts
that occur through internal and external negotiations.
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David Cozad
Page 9
Regarding the recommendation/requirement, the Department feels that we have already made the
necessary adjustments to address this element and agrees to the corrective actions outlined in the
Draft Report.
The final page of the Draft Report has an Appendix title but it is unclear as to whether or not
there are other findings or supplemental information that we should be reviewing as well.
If you have any questions regarding the response or would like to schedule a video conference to
discuss the Draft Report, please contact Kristi Savage-Clarke by phone at 573-522-4506: by
email at kristi.savage-clarke@dnr.mo.gov:. or by mail at Department of Natural Resources, Water
Protection Program, Compliance and Enforcement Section, P.O. Box 176, Jefferson City, MO
65102-0176. Thank you.
Appendix
Sincerely,
WATER PROTECTION PROGRAM
Chris Wieberg
Director
CW/lec
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Appendix 2
EPA Response to Missouri Department of Natural Resources' Comments
EPA Region 7 appreciates MDNR's responses to the draft SRF report. EPA 's responses are
provided below. EPA will make the additions/correction to the report as specified below.
Thank you for providing the Missouri Department of Natural Resources the opportunity to
review and comment on the Federal Fiscal Year 2019 (FFY19) State Review Framework (SRF)
Draft Report. The Department acknowledges the need to improve implementation of
compliance activities and appreciates the opportunity to collaborate on refining our
enforcement of the National Pollutant Discharge Elimination System program.
The Department provides our responses, comments, and clarification needs below. The
following comments are formatted to follow the structure of the Clean Water Act (CWA)
Findings section of the Draft Report in an effort to ease Environmental Protection Agency's
(EPA's) review. Only those elements that the Department had comments on are addressed. The
Department requests that EPA supply a revised Draft Report for review prior to issuing a final
report.
State and EPA key contacts for review:
The Department requests that EPA add the following individuals to the list of key contacts
for review found on page 4 of the report.
Joel Reschly, Department of Natural Recourses, Legal Counsel, General
Counsel'sOffice
Ed Galbraith, Department of Natural Recourses, Director, Division of
Environmental Quality
Additionally, please correct the spelling of Kristi Savage-Clarke's last name and her position
title to Environmental Program Manager.
EPA has made these additions and corrections to the report.
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EPA Draft SRF Report Finding
MDNR Comment on the draft SRF Report
EPA Response to MDNR comments
GENERAL COMMENTS
General Clarification Request No. 1
The Department would like to understand the origin of the metrics evaluated in the Draft
Report so that we can begin to better align strategy and implementation with federal
expectations. In the introduction sections of the report, EPA explains that it uses "a
standardized set of metrics to evaluate [delegated states'] performance against performance
standards laid out in federal statute, EPA regulations, policy, and guidance." The Department
requests that the report include citations to the specific federal statutes, regulations, policies,
and guidance documents that contain or describe these performance standards.
EPA Response:
The SRF is an established process that was developed and has been in use since 2004 and was
used in previous SRF reviews with Missouri. EPA andECOS worked in collaboration to
develop this framework. For additional information, EPA refers MDNR to the SRF guidance
document "Clean Water Act Metrics Plain Language Guide (State Review Framework Round
4") which was provided in the Kickoff Letter sent to MDNR, dated March 31, 2020. The Clean
Water Act Metrics Plain Language Guide describes in detail the SRF process, metrics used and
provide links to various applicable policy/guidance.
No change to the report.
General Clarification Request No. 2
The Department has a general request that will help us understand the areas of attention and
improvement better so that we can make appropriate adjustments in the coming years. For
Findings 1-1, 1-2, 2-4, 4-1, 4-2, and 5-1, we request that EPA provide a list of the files/facilities
you reviewed and indicate whether or not they met performance expectations. For all Findings
listed above except for Finding 4-2, we further request that EPA select and provide three
specific examples from each of the lists to help provide further context and understanding.
EPA Response:
Please refer to email sent 7/2/2021 which includes the File review final Calc Sheet excel file
which lists whether certain files met performance expectations. Also attached was a summary
file showing the metric 2b data issues found in certain files. Other examples to address your
questions will be discussed with MDNR as detailed below:
Finding 1-1 was determined to be Meets or Exceeds. MDNR can pull these data metrics (lb5
and lb6) from ECHO if they would like additional information.
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Finding 1-2 was determined to be an Area for Improvement (Metric lb2, data accurately
reflected in National Data System). See excel spreadsheet for more information which lists
issues found with various facilities. The SEV portion of this finding was discussed on September
1, 2021 with MDNR staff and generally follows the recommendation from Headquarters (see
email sent to MDNR on 7/21/21). Changes will be made to finding 1-2 in the report to reflect
this information.
Finding 2-4 was determined to be an Area for Attention (Metric 6b, Timeliness of inspection
report completions). See excel spreadsheet for more information.
Finding 4-1 was determined to be an Area for Improvement (Metric 9a enforcement action
bringing a facility back into compliance) and Metric 10b (Enforcement responses reviewed that
address violations in an appropriate manner). See excel spreadsheet for more information. A
conference call was held on 9/1/2021 with MDNR staff to go over the three examples for both
Metric 9a and 10b.
Finding 4-2 was determined to be an Area for Improvement (Metric 10b, pretreatment). Three
examples were already provided in the writeup. See excel spreadsheet for more information.
Finding 5-1 was determined to be an area for Improvement (Metric 11a, Penalty calculations
that document and include gravity and economic benefit). See excel spreadsheet for more
information. A conference call was held on 9/1/2021 with MDNR staff to go over the three
examples.
General Comment No. 1
Thank you for the useful observations regarding adherence to the Department's Procedures for
Assistance, Compliance and Enforcement (PACE) Manual. We will address these as
appropriate. However, we disagree that these observations should be included as SRF
"findings," as the PACE Manual itself is not a federal law, rule, policy, or guidance. The
majority of the procedures in the PACE Manual are internal guidance to assist Department staff
in carrying out their duties. For the most part, it does not establish strict standards of
performance, but guidance that offers flexibilities allowing staff to respond appropriately in a
variety of scenarios. The Department reserves the right to deviate from guidance as conditions
warrant. Therefore, the PACE Manual is only relevant to the SRF to the extent EPA is
evaluating whether the guidance in the PACE Manual itself is consistent with federal standards,
such as retention of field notes.
EPA Response:
As EPA has done in past SRF reviews with MDNR, we believe it is appropriate to use the
inspection/enforcement manual that MDNR has in place at the time of the review. In this case,
the MDNR's PACE manual was used as the reference point in evaluating the State's
enforcement program as the PACE manual sets forth timeframes for various activities such as
inspection transmittals, enforcement escalation etc. The PACE manual was developed to meet
the criteria set forth below andforms the basis for a robust enforcement management system.
This is standard practice for EPA to review the governing documents when a state is evaluated
under the SRF program. The PACE manual was created in response to previous SRF
comments (previous state improvement item from Round 3) and to improve MDNR's
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enforcement and compliance program. The EPA used this SRF as a follow-up to determine how
the PACE manual has impactedMDNR 's activities. Delegated state programs must meet
certain requirements. Please see the following criteria for additional information:
Please refer to the Enforcement Response Guide beginning on page 55 of The Enforcement
Management System, National Pollutant Discharge Elimination System (Clean Water Act), U.S.
Environmental Protection Agency, Office Of Water 1989,
https://www.epa.sov/sites/default/files/2020-10/documents/emsnpdes-cwa.pdf. for
details/explanation regarding the appropriate enforcement response for a particular type of
violation.
Guidance for SNC at majors: Please refer to page 85 (Attachment B Enforcement Response
Guide) of the above-referenced document of the EMS to determine whether an enforcement
action taken to address SNC is appropriate:
Please see page 86 "All SNC violations must be responded to in a timely and appropriate
manner by administering agencies. . . The responses should reflect the nature and severity of the
violation, and unless there is supportable justification, the response must be a formal action (as
defined in Chapter 11, Principle No. 5, page 23), or a return to compliance by the permittee
generally within one quarter from the date that the SNC violation is first reported on the QNCR
Administrating agencies are expected to take a formal enforcement action before the violation
appears on the second QNCR, generally within 60 days of the first QNCR. If the approved State
does not act before the second QNCR, the State should expect U.S. EPA to take a formal
enforcement action. In the rare circumstances when formal enforcement action is not taken, the
administering agency is expected to have a written record that clearly justifies why the
alternative action (informal enforcement action or permit modification) was more appropriate.
This record may take the form of a "Violation Summary" included in this document as
Attachment C".
Referring to the Memorandum of Agreement (MOU) between EPA and MDNR (Final dated
December 14th, 2016), Section III, Paragraph A (MDNR Responsibilities), page 2, "MDNR shall
exercise the legal authority through MDNR regulations and the state statutes required by the
CWA and, to the maximum extent possible, maintain the resources required to carry out all
aspects of the authorized NPDES and Pretreatment Programs
Section V. Compliance Evaluation and Permit Enforcement, D. Enforcement Response, 1, (Page
8), "MDNR shall be responsible for taking timely and appropriate action in accordance with 40
CFR 123.27 against persons in violation of NPDES program requirements (illegal discharges,
effluent limitations, pretreatment requirements, compliance schedules, reporting requirements,
and other permit conditions.... Furthermore #2 States that "MDNR will develop and maintain
written enforcement procedures that establish at a minimum a) A process for determining the
appropriate level of action for specific categories of violation; 3) MDNR shall be able to
demonstrate that its enforcement response procedures results in a) Appropriate initial and
follow-up enforcement actions that are applied in a timely manner; b) Formal enforcement
actions, when appropriate, that require actions to achieve compliance, specify and timetable,
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contain consequences for noncompliance that are independently enforceable and that subject the
violator to adverse legal consequences for noncompliance
EPA 's position is that the PACE manual forms the basis for MDNR 's enforcement program and
is relevant to the SRF findings.
No change to the report.
General Comment No. 2
The EPA has clarified that all the recommendations listed under each element rated as an Area
for Improvement are in fact required actions. The Department requests that the language be
changed to reflect that these corrective actions are "required" rather than "recommended."
Consistent with our request above, we would ask that if there is federal statute, regulation,
and/or policy that requires the element or corrective actions, please note that under each Area of
Improvement so that the report is clear as to the difference between required actions and
recommendations.
Additionally, the Department would like flexibility to reevaluate efforts to achieve
milestones and make appropriate adjustments to goals and/or extensions to timelines in
response to unforeseen barriers.
EPA Response:
As EPA clarified before with discussions with MDNR staff, any areas which were found to
be "Area for Improvement" are required to be addressed. The SRF template used was
developed and has been in use for some time in consultation with ECOs. EPA suggests
MDNR work through ECOs to potentially change heading language in the template for the
next round of reviews. As referenced above, the Clean Water Act Metrics Plain Language
Guide contains additional information on the SRF process and links to applicable
guidance/policy documents.
No changes to template or text.
CWA Element 1 - Data
Finding 1-2
Please reference General Clarification Request Nos. 1 and 3 above. Without a detailed list
of what was missing, we cannot determine whether the missing data was a data entry
failure or arejection from the Integrated Compliance Information System (ICIS).
As EPA is aware, Missouri is a batch data submission state and there are still data transfer
issues between our Missouri Clean Water Information System (MoCWIS) and EPA's
ICIS/Enforcement and Compliance History Online. We are still experiencing rejection of
some data during batching. The Department appreciates EPA providing additional access to
its data contractor, Windsor Solutions. Windsor has run another analysis based on some data
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identifyingspecific groups of data rejected by ICIS.
Regarding consistent identification of single-event violations (SEVs) as either significant
noncompliance (SNC) or non-SNC, the Department believes that EPA's expectations may not
bewithin the Department's reach. Although MoCWIS is transferring SEVs to ICIS, the
Departmentis still unable to identify which SEVs are SNC in MoCWIS. One complicating
factor is that EPA's Single Event Violation Data Entry Guide for ICIS-NPDES does not
identify which of the 168 SEVs should be considered SNC. Another complication is that the
Department will need to make significant enhancements to MoCWIS in order to meet this
expectation. Compounding those issues further, it's the Department's understanding that ICIS
itself does not have the functionality to identify that an SEV is SNC and could not accept that
data from MoCWIS even if we were able to enhance the database.
If EPA continues to require that the Department meet this expectation, we ask that EPA
provide the following resources: 1) training on SEVs, particularly regarding which SEVs are
SNC and how to identify them in the field; 2) enhancement to ICIS in order to accept SEV
SNC records; and 3) ongoing assistance to the Department in overcoming unforeseen barriers
that may arise during fulfillment of this obligation. The time commitment necessary to either
enhance the Department's MoCWIS database or manually enter SEV data into ICIS would
greatly reduce theDepartment's ability to complete enforcement actions.
Regarding the recommended/required milestones, the Department is hesitant to commit to
any schedule for corrective action until we better understand the data discrepancies
resulting in EPA's finding for this element.
EPA response;
EPA provided a list of 2b metrics where data discrepancies/errors were found on July 2,2021
(email sent to MDNR).
After consulting with EPA Headquarters regarding ICIS's capabilities and SEV codes, EPA
proposes to use the Headquarter's guidance on SEVs, SNC. Headquarter's guidance was sent to
MDNR staff on July 21, 2021 which provides a description for entering SEVs/SNC. A Follow-up
discussion was held on Sept 1, 2021 with MDNR staff to discuss this guidance.
In regards to training, EPA headquarters provided SEV training on June 14, 2021. The slides
from this training along with Headquarter's instruction on entering SEVs/SNC was sent to
MDNR staff on July 21, 2021. EPA Headquarter's confirmed that ICIS can handle SEV codes
and SNC. EPA Headquarters and Region 7's will continue to provide training and assistance for
data issues as needed.
This SRF finding has been revised to reference EPA Headquarter's solution/explanation as
detailed in email sent to MDNR staff on July 21, 2021. Completion dates have been extended.
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CWA Element 2 - Inspections
Finding 2-3
Please reference General Clarification Request No. 1 and General Comment No. 1 above. As
noted in EPA's report, our PACE Manual contains the current procedure for disposition of
field notes. At this time, a legal review of our field note retention policy is not scheduled. If
the current policy does not meet federal law, please provide that information. Otherwise, we
requestEPA withdraw the recommendation on this finding.
EPA Response:
EPA continues to recommend thatMoDNR conduct a legal review to determine the proper
procedure for disposition of field notes, checklists, and any other materials to ensure
consistency with state andfederal law. EPA has concerns as to whether the disposal of these
records is meeting federal and state record keeping/retention requirements as described
below. We question if it is appropriate to dispose of inspection notes/checklists that are not
otherwise captured in some other format. Please see the following:
EPA notes that a record in the State of Missouri is defined by RSMo 109.210. and argues that
"field notes" and "checklists" as part of an inspection meets this state definition because these
are documents made in the transaction of official business.
(5) "Record", document, book, paper, photograph, map, sound recording or other material,
regardless ofphysical form or characteristics, made or received pursuant to law or in
connection with the transaction of official business. Library and museum material made or
acquired and preserved solely for reference or exhibition purposes, extra copies of documents
preserved only for convenience of reference, and stocks ofpublications and ofprocessed
documents are not included within the definition of records as used in sections 109.200 to
109.310, and are hereinafter designated as "non record" materials. "
It is important to note that often the determination of a record can reflect on the documents
purpose, value, and adequacy of that document. In this instance, EPA concludes that field
notes/checklists are purposefully made to support legal determinations of compliance with
Missouri environmental law (and often federal environmental law) and may later function as
evidence to support such conclusions.
Given EPA's conclusion that field notes and checklists are likely a "record" for purposes of
state law, EPA, as part of this review andfinding, evaluated the disposition offield notes,
checklists to determine if these documents are consistent with EPA regulations. 40 CFR §
123.26 states, "(a) State programs shall have procedures for receipt, evaluation, retention and
investigation for possible enforcement of all notices and reports required ofpermittees and other
regulated persons (andfor investigation for possible enforcement offailure to submit these
notices and reports)
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Additionally, the NPDES Compliance Inspection Manual EPA Publication Number 305-K-l 7-
001 Interim Revised Version, January 2017, Chapter 2.E Inspection Procedures-
Documentation, includes the following:
Inspector's Field Notebook- "Notebooks become an important part of the evidence package and
can be admissible in court. The field notebook is a government record and subject to record
retention schedules".
Further in the same section under Documents and Digital images- "All documents taken or
prepared by the inspector such as completed checklists for the inspection report should be noted
and related to specific inspection activities
Finally, relevant sections from the Memorandum of Agreement between EPA and MDNR
dated December 14th, 2016, include the following:
Section V. Compliance Evaluation and Permit Enforcement, Section B. Compliance Review,
"MDNR shall conduct timely and substantive reviews and keep complete records of all material
relating to compliance status of entities subject to regulation under the NPDES program,
including but not limited to, Compliance Schedule Reports, Discharge monitoring reports,
Compliance Inspection Reports, and any other reports that entities may be required to submit
under the terms and conditions of an NPDES permit, approved Pretreatment Program,
administrative order or judicial enforcement action. "
Section V. Compliance Evaluation and Permit Enforcement, Section D, Enforcement Response,
3. MDNR shall be able to demonstrate that its enforcement response procedures result in: d,
"Compilation of complete and accurate records that can be used in future enforcement actions. "
It is EPA's opinion that field notes, checklists meet the definition of a record in the State of
Missouri and EPA regulations and should be preserved. EPA 's opinion is that field notes and
checklists that are made or received pursuant to law or in connection with the transaction of
official business would be considered records.
Completion dates have been extended.
Finding 2-4
Please reference General Comment No. 1 above. Department staff understand that the goal is
for reports to be issued within 30 days of the inspection. The use of the terms "completion"
and "transmittal" is less clear. We suggest using the term "issuance" throughout the
explanation of the finding.
As additional background, the Department operates within regional boundaries, with each
region having its own review, approval, and issuance process for inspection reports. One of
the Department's regions, Central Field Operations, is new and does not yet have a complete
team. Lack of supervisors in that region resulted in increased delays in processing of
inspection reports. This likely contributed to a number of reports being issued more than 30
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days after inspection. However, it is acceptable for inspectors to exceed the 30-day goal in
certain situations per Section 4.1 of the PACE Manual: "If staff anticipates the report cannot
be written,administratively reviewed, and mailed within 30 days of the completion of the field
activity, notice and justification must be provided to supervisory staff."
EPA Response:
This was found to be an Area of Attention and therefore no additional follow-up is planned by
EPA. We encourage MDNR to follow the PACE manual and strive to complete/issue the
inspection reports in 30 days or less.
No changes will be made to the current text.
CWA Element 4 - Enforcement
Finding 4-1
Please reference General Clarification Request Nos. 1 and 3 and General Comment No. 1
above.
Regarding the comment on proper enforcement response, the PACE Manual is general
guidance that allows staff to deviate from standard procedures in situations that require case-
by-case evaluations, as outlined in Section 1 on page 1 of the PACE Manual. As a result, the
PACE Manual offers flexibilities to use enforcement discretion on which type of informal
enforcement action is appropriate, if any. The Department considers the factors around the
case when determining whether or not an official letter is appropriate. Some circumstances
warrant deviations from the procedure outlined in the PACE Manual. Note that violations can
be referred for formal enforcement action immediately if there is a direct threat to human
health or the environment, such as a discharge resulting in a fish kill or a spill involving a
toxic substance.
With regard to EPA's comment on the number of formal enforcement actions, while it is true
that the number of formal enforcement actions has decreased between 2015 and 2019, it is
also true that the number of active enforcement cases decreased from 571 to 433 cases. This
is by design, to a significant degree, because just as EPA shifted from National
Enforcement Initiatives to National Compliance Initiatives, the Department also adopted
a policy of increased emphasis on compliance assistance. Compliance assistance requires
much more interaction with the responsible party prior to issuance of informal or formal
enforcement actions. If we can correct the violations before they rise to the level of SNC, we
also reduce the need for formal enforcement actions. Should the Department's compliance
assistance efforts not result in compliance, the case is escalated through a series of steps,
regardless of the severity of the violation(s). This progression starts with an Unsatisfactory
Finding Letter or a Letter of Warning(LOW), followed by a Notice of Violation (NOV), then
a Referral Notice of Violation, and finally, formal enforcement action. Multiple LOWs or
NOVs may be issued prior to escalating tothe next level of enforcement action. There is one
exception to this rule, in which violations can be referred to enforcement immediately if
there is a direct threat to human health or the environment, such as a discharge resulting in a
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fish kill.
In addition, enforcement staff have been asked to put extensive effort into EPA's SNC
National Compliance Initiative. Effectively addressing SNC requires a balance of
enforcement and compliance assistance. The Department feels that increasing compliance
assistance activities better aligns with the EPA's 2018 to 2022 Strategic Plan to emphasize
compliance assistance efforts. This better conveys the message that increased compliance is
the goal and that enforcement actions are not the only tool for achieving compliance.
The Department is committed to taking all appropriate enforcement actions while increasing
compliance assistance activities, within the constraints of finite staffing resources. It is a
question of the balance that will yield the greatest compliance. The Water Pollution Control
Branch's Compliance and Enforcement Section had 432 enforcement cases in FFY19. This
resulted in an average of over 58 cases for each case manager. Even supervisors handle a
number of cases to distribute the burden.
Another factor is the significant turnover during this time period as the Section Chief, one
Unit Chief, and four case managers retired or left the section in late 2018 or 2019.
Additionally, in 2018 and 2019, the Department has increased its emphasis on quality and
consistency in enforcement actions. Producing higher-quality enforcement actions and
increasingconsistency across the different environmental media is providing long-term
benefits, but the process of adjustment required significant focus and time.
Regarding the recommendation/requirement, prior to committing to a corrective action
schedule,the Department would like to understand how EPA came to its finding for this
element. We would like to see the examples where the escalation was deemed inadequate
according to EPA. This will help us either provide better explanations for decisions that may
appear to deviate from the PACE Manual, or make appropriate adjustments.
EPA understands the needfor enforcement discretion. However, the deviations from the PACE
manual noted in the files reviewed were substantial. EPA discussed 3 examples related to this
finding with MDNR staff on September 1, 2021. Most noteworthy were files where the inspection
noted a sheen or some other serious violation and an "Unsatisfactory letter" or "Letter of
Warning" was issued to the facility as follow-up. These were clear level one violations, but the
follow-up was not commensurate with the violation found. As the PACE manual states in Section
4.5-Noncompliance Process, Violation Groups (Page 1) "Group 1 violations are the most
serious and significant impacts or threats to human health and the environment". The manual
goes on to states that "These violations must be addressed through the issuance of a Referral
Notice of Violation (RNOV) and by immediate referral for program enforcement action".
Timeframes for completion were adjusted in SRF writeup.
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Finding 4-2
Escalation of noncompliance related to pretreatment follows the same progression outlined in
the response to Finding 4-1.
Regarding the recommendation/requirement, the Department has already begun making
improvement to enforcement of the pretreatment program. This issue is a topic of quarterly
pretreatment coordination meetings, where training and discussion occur between the
Pretreatment Coordinator and pretreatment inspectors. Additionally, the Pretreatment
Coordinator has updated a guidance document that delineates roles and responsibilities for the
various team members across the state that deal with implementation and enforcement of the
pretreatment program. To build upon these education and training efforts, we will be
generating an informational email to distribute to all regions informing them of the
Department's obligation to evaluate compliance with pretreatment regulations at
municipalities that do not have approved pretreatment programs. Though such an email may
be an immediate response to this issue, the Department recognizes that it will take time to
effect changes necessary to properly enforce the program.
The Department's Pretreatment Coordinator is also working with our Operating Permits
Section to generate more robust permitting requirements related to pretreatment. This will
assist inspectors in identifying compliance issues and taking appropriate enforcement actions.
See the following excerpt from the Permitting Quality Review (PQR) on pretreatment that
will better inform and assist inspectors in addressing pretreatment at applicable facilities:
The Industrial Pretreatment Program (IPP) is committed to coordinating with
the NPDES Permit Section. We will address this noted deficiency in the new
procedure, "Industries Discharging to POTWs without Approved Programs:
NPDES Application Review and Notification RequirementsThe new
procedurewill ensure continued coordination, information sharing, technical
knowledge transfer, and application completeness. In addition, we propose to
update the application form to make clearer the requirements of the
pretreatment program and need for the lists of industrial users. In addition to
the essential action item, the above procedure will address the
recommendations that the Department 1) develop "a way to confirm
statements made by cities that no industrial wastes are discharged to them"
and 2) "study how to utilize information reported in Part F of the permit
application. All information provided on any industrial users should be shared
with the Pretreatment Coordinator as a matter of routine." First,using the
search for industries processes noted in the PQR we have incorporated those
processes in the above procedure. Second, the procedure will request that
during completeness review the permit writer coordinate with the IPP
coordinator when the application lists industries. When the application lists
industries, the IPP coordinator will assist the permit writer in notifying the
Publicly Owned Treatment Works (POTW) and/or industry of the
requirements under the
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pretreatment program. Depending on the industry, we should include a special
condition [and the factsheet] in the permit that acknowledges the presence of
industry and that the Department is the control authority over that discharge
under 40 CFR 403. As applied in past POTW permits, the special condition
could also address problem [food] industries with additional pretreatment-
related requirements that protect the POTW from experiencing pass through
and interference.
With increased knowledge and understanding, the Department is confident that this issue is
already being addressed; however, we feel it will take time to fully educate all inspection staff
and incorporate pretreatment compliance evaluations into the normal course of business. Over
the next two years, we will attempt to provide five examples of proper inspection and/or
enforcement actions related to pretreatment at municipalities where the Department is control
authority. If we need more time, we request the flexibility to obtain extensions to the proposed
schedule for corrective actions.
EPA acknowledges the effort that MDNR is undertaking to address the pre-treatment issues
found during the SRF review.
Timeframes for completion were adjusted in the writeup.
CWA Element 5 - Penalties
Finding 5-1
Please reference General Clarification Request No. 3 above. To date, the Department
primarily uses the avoided costs of annual permit fees and the avoided costs of sampling to
calculate the economic benefit of noncompliance for:
C. Operating without a permit, which includes facilities that have never been
permitted and facilities that fail to renew their permit. Some facilities that fail to
renew a permit will continue to pay annual permit fees and submit Discharge
Monitoring Reports (DMRs). In that case, those facilities have not gained any
economic benefit by operating without a permit.
D. Facilities that have failed to submit DMRs or have submitted incomplete DMRs.
To be clear, if a facility has an active or administratively continued permit and has not paid
annual permit fees for one or more years, that facility's failure to pay its annual permit fees is
a separate liability and is not considered a penalty or economic benefit, making the statute of
limitations 5 years. However, if the facility never had a permit or if the permit is expired and
not administratively continued, then we would not have sent an invoice for the permit fees and
must instead include the avoided costs of fees in the economic benefit component of the
penalty. In that event, because the unpaid permit fees are considered a penalty, our statute of
limitations is only 2 years. To calculate the amount owed, we consult the Department's
schedule for permit fees and multiply the appropriate permit fee by the number of years that
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the facility did not pay fees, for up to 2 years.
Additionally, the Department has a spreadsheet that we use to estimate the cost of sampling
and analysis for missing DMRs where samples were neither collected nor analyzed. We
update the costs used to determine economic benefit by averaging the amounts charged by
laboratories across Missouri. When this spreadsheet is used it is attached to the penalty
matrix. If EPA can assist the Department in identifying additional factors that could be
considered when calculating the economic benefits of noncompliance, we would be happy to
consider incorporating those factors into our procedures. The Department strongly believes in
the need to maintain a level playing field for businesses, municipalities, and others, who, as
part of doing business, operate potential water pollution sources.
The Department's Water Pollution Control Branch has no control or authority over the
Department's Waste Management Program and its calculation of economic benefit costs, nor
do we have the authority to develop policies for Department-wide application. If we are
correctly guessing which multi-media case is referenced in your example, the Water Pollution
Control Branch did not have any identifiable economic benefit, however, the Waste
Management Program was able to calculate economic benefit related to the tipping costs that
were avoided for solid waste that should have been landfilled. The Department has since
referred that matter to theMissouri Attorney General's Office, which then filed a lawsuit
against the violator to compel compliance and recover penalties, including economic benefit.
That lawsuit is ongoing. If this SRF review had been conducted in person, we think that
communication between EPA and the Department would have provided a better explanation
for the decisions related to this complex multi-media case.
Regarding the recommendation/requirement, the Department feels we have already made the
necessary adjustments to address this element. The Excel spreadsheet we use for our Penalty
Matrix includes a tab showing how to calculate the economic benefit as well as a section
within the final calculation for entry of the total amount of economic benefit. These changes
occurred as a result of the previous SRF review. Likewise, the Department provides reasoning
within the associated Summary in the Penalty Matrix that outlines the enforcement case. This
narrative addresses both the penalty and any economic benefit that may have been added.
After this most recent review, staff received additional training on the use of the Penalty
Matrix with special emphasis on economic benefit. The Department would like to submit an
alternative set of corrective actions for this finding. We propose providing the templates
immediately and then submitting five examples of cases that address this element as soon as
possible, without having to provide quarterly progress reports.
EPA Response:
EPA requests MDNR consistently use the penalty format that was put in place after the last
SRF review. Provide justification/rationale when zero is determined to be the economic
benefit. Provide justification/rationale on why any of the three exclusions are selected.
Timeframes for completion were adjusted in the SRF writeup.
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Finding 5-2
The Department acknowledges the need to improve documentation of changes to penalty
amounts that occur through internal and external negotiations.
Regarding the recommendation/requirement, the Department feels that we have already made
the necessary adjustments to address this element and agrees to the corrective actions outlined
in the Draft Report.
EPA Response:
During the September 1, 2021 conference call between MDNR and EPA, MDNR explained that
they are not using the penalty memo anymore, but revised the penalty matrix form (inserted a
box) in the penalty memo to provide a narrative to document this change. MDNR will submit 5
penalty matrix form writeups that include this documentation as stated in the timeframes in the
Recommendation.
Broadened wording to include to include references to other documentation that MDNR is now
using to document changes.
Appendix
The final page of the Draft Report has an Appendix title but it is unclear as to whether or
not there are other findings or supplemental information that we should be reviewing as
well.
EPA response- no other findings are in this section.
If you have any questions regarding the response or would like to schedule a video conference
to discuss the Draft Report, please contact Kristi Savage-Clarke by phone at 573-522-4506; by
email at kristi.savage-clarke@dnr.mo.gov; or by mail at Department of Natural Resources,
Water Protection Program, Compliance and Enforcement Section, P.O. Box 176, Jefferson
City, MO 65102-0176. Thank you.
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