STATE REVIEW FRAMEWORK Kansas Resource Conservation and Recovery Act Implementation in Federal Fiscal Year 2018 U.S. Environmental Protection Agency Region 7 Final Report March 6, 2020 ------- 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 2 of 19 ------- 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 3 of 19 ------- specific actions and a schedule for completion, and their implementation is monitored by the EPA until completion. III. Review Process Information Resource Conservation and Recovery Act (RCRA) Key dates: SRF Kickoff letter mailed to KDHE: May 16, 2019 File selection list sent to KDHE: May 10, 2019 Data Metric Analysis sent to KDHE: May 10, 2019 Entrance interview conducted: June 11, 2019 File review conducted: June 11-14, 2019 Exit interview conducted: June 14, 2019 Draft report sent to KDHE: December 10, 2019 Final report issued: March 6, 2020 State and EPA key contacts for review: Julie Coleman, KDHE, BWM, Director Brian Burbeck, KDHE, BWM, Compliance, Assistance & Enforcement Unit Chief Ken Powell, KDHE, BWM, Compliance & Enforcement, Waste Reduction & Assistance Section Chief Nicole Moran, USEPA Region 7, Acting RCRA Section Chief (July to November 2019) Edwin G. Buckner PE, USEPA Region 7, RCRA Compliance Officer and Acting RCRA Section Chief (November 2019 to March 2020) Kevin Snowden, USEPA Region 7, RCRA Compliance Officer Michael J. Martin, USEPA Region 7, RCRA Compliance Officer Kevin Barthol, USEPA Region 7, SRF Coordinator Page 4 of 19 ------- 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: Resource Conservation and Recovery Act (RCRA) Most Minimum Data Requirements (MDRs) are accurately entered into the national data systems, except violations, which are not consistently linked in RCRAInfo to Significant Non-Compliers Yes flags (SNY) evaluations. Inspections are thorough and identify all violations. KDHE met the inspection numbers expected for TSDFs. All compliance and SNC determinations appear to be accurate. All enforcement actions were taken to conclusion and resulted in facilities return to compliance. KDHE properly uses its penalty guidance and obtains penalties appropriate to that guidance. 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: Resource Conservation and Recovery Act (RCRA) KDHE fell short of the expected inspection numbers for LQGs. KDHE did not meet the state 30-day timetable for completing inspection reports. Although SNC determinations appear to be accurate, the official determination takes longer than 150 days. KDHE penalty guidance does not specifically address economic benefit of noncompliance and thus penalty calculations do not account for EBN. Page 5 of 19 ------- Resource Conservation and Recovery Act Findings RCRA Element 1 - Data Finding 1-1 Meets or Exceeds Expectations Summary: Most Minimum Data Requirements (MDRs) are accurately entered into the national data systems, except violations, which are not consistently linked in RCRAInfo to Significant Non-Compliers Yes flags (SNY) evaluations. Explanation: KDHE is accurately entering data such as facility information, inspections, violations, informal and formal enforcement actions, and penalties, two enforcement actions were not recorded. Although violations are identified in the database, in most cases the violations were not linked to the SNY evaluation. Relevant metrics: ,. _ . . . _ . Natl Natl State State State Metric ID Number and Description , 1 Goal Avg N D % 2b Accurate entry of mandatory data [GOAL] | 100% | | 32 [ 34 | 94.1% State Response: None RCRA Element 2 - Inspections Finding 2-1 Meets or Exceeds Expectations Summary: Inspections are thorough and identify all violations. KDHE met the inspection numbers expected for TSDFs. Explanation: Page 6 of 19 ------- Inspectors are well trained and make use of modern electronic inspection equipment. Reports are clear and convey sufficient information to make accurate enforcement decisions. KDHE inspected all eight of the TSDFs during the two-year cycle. Relevant metrics: Metric ID Number and Description Natl Goal Natl Avg State N State D State % 5a Two-year inspection coverage of operating TSDFs [GOAL] | 100% 85% 8 8 100% 6a Inspection reports complete and sufficient to determine compliance [GOAL] I 100% 34 34 100% | State Response: None RCRA Element 2 - Inspections Finding 2-2 Area for Improvement Summary: KDHE fell short of the expected inspection numbers for LQGs. KDHE did not meet the state 30- day timetable for completing inspection reports. Explanation: There is a high turnover rate among KDHE inspectors. KDHE consistently inspects fewer LQGs than expected. The five-year coverage percentage could vary based upon the baseline number of LQGs in the state over five years and does not address redundant inspections. The 54.5% timeliness rate is based upon the state's 30-day timetable. The state will be receiving a multi- purpose grant. It will be used to investigate and implement lean management methods to address this and other issues. Relevant metrics: Page 7 of 19 ------- Metric ID Number and Description Natl Goal Natl Avg State N State D State % 5b Annual inspection of LQGs using BR universe [GOAL] 20% 15.6% 30 227 13.2% 5c Five-year inspection coverage of LQGs [GOAL] 100% 179 207 86.5% 6b Timeliness of inspection report completion [GOAL] 100% 18 33 54.5% State Response: KDHE fell short of the expected inspection numbers for LQGs. We accept the recommendations made for this area of improvement and will work to meet the national goal of inspecting 20% of LQGs annually as follows. There are about 1,416 hazardous waste generators in Kansas (not including Conditionally Exempt Small Quantity Generators). Of these 229, or 16%, are Large Quantity Generators (LQGs). In order to meet the national goal of inspecting 20% of LQGs annually, Kansas will need to inspect 46 per year. We have already planned to meet this goal in FFY 2020 by scheduling 53 LQGs for inspection and will strive to complete at least 46 of these. As part of the multi-purpose grant, during 2020 BWM and BEFS also will conduct a Quality Improvement process mapping event for the inspection process in an effort to identify ways to make the inspection process more efficient while maintaining the integrity of inspections. Despite our best efforts and intentions, there will be challenges to meeting this goal. There are 12 inspector positions in the six KDHE district offices. These inspectors are responsible for conducting all hazardous and solid waste inspections and complaint investigations, as well as assisting with disaster and emergency response as needed. Currently, two of the inspector positions are vacant and only seven of the existing inspectors are certified to perform hazardous waste inspections. Certified inspectors also are responsible for training new inspectors. There also are three certified hazardous waste inspectors in central office of the Bureau of Waste Management who have been assigned five LQG inspections during FFY 2020. However, these inspectors are enforcement officers who are responsible for reviewing all district inspection reports for enforcement and developing enforcement orders. Therefore, to meet the recommendations for other areas of improvement identified in EPA's report their inspections may not be completed. We expect this trend of vacancies to continue based on the turnover we have been experiencing and anticipated retirements in the next several years. When an inspector position is filled, it typically takes a new inspector from 1.5 to 2 years to complete the training and demonstrate competence to become certified to conduct hazardous waste inspections. Meeting EPA's national goal for LQG inspections may continue to be a challenge for Kansas despite our best efforts. Page 8 of 19 ------- KDHE did not meet the 30-day timetable for completing inspection reports. We will review this expectation with inspectors and improve tracking in an effort to ensure the 30-day goal is met most of the time. As part of the multipurpose grant we will be performing process mapping on the inspection process to determine any areas that can be improved to assure the timeliness of report completion. Because the 30-day timetable for completing inspection reports is an internal BWM goal (there is no statutory mandate requiring the 30-day timeframe) this will include re-evaluation of the 30-day goal. As acknowledged in EPA's draft SRF report, there are legitimate factors that contribute to inspection reports occasionally exceeding the 30-day internal goal, for example: (1) delayed facility responses to inspector requests for information needed to complete reports, and (2) on- going and extended inspector vacancies which create greater demands on inspection staff can cause delays in report submittals. Recommendation: Ucc # Due Dale Recommendation The state will be receiving a multi-purpose grant to investigate and implement lean management methods. EPA recommends KDHE to include this inspection coverage of LQGs and timeliness of inspection reports in its efforts. Report to EPA on monthly calls and a written report semi-annually on the progress/efforts. This recommendation will be deemed complete when: 1. KDHE LQG inspections increase to meet the approximate 20% annual target of the BR universe. At the end of FY20, EPA will review KDHE inspection data in order to determine progress. If the FY20 data does not meet this threshold, EPA will review subsequent years data until met. 2. If 85% or more of a selection of KDHE inspection reports meet the 30-day timetable. At the end of FY20, EPA will review a selection of inspection reports to determine progress. If the FY20 data does not meet this threshold, EPA will review subsequent year reports until met. 03/01/2021 RCRA Element 3 - Violations Finding 3-1 Meets or Exceeds Expectations Page 9 of 19 ------- Summary: All compliance and SNC determinations appear to be accurate. Explanation: All compliance and SNC determinations are reasonable and accurate. The inspection reports provided ample details to assess the seriousness of cited violations. Five of the reviewed files had no cited violations. Fifteen of the 29 files with violations were accurately determined to be SNCs with the remaining 14 accurately determined to be only secondary violations. Relevant metrics: Metric ID Number and Description Natl Goal Natl Avg State N State D State % 7a Accurate compliance determinations [GOAL] i 100% 1 34 34 100% 8c Appropriate SNC determinations [GOAL] | I 100% 29 29 100% State Response: None RCRA Element 3 - Violations Finding 3-2 Area for Improvement Summary: Although SNC determinations appear to be accurate, the official determination takes longer than 150 days. Explanation: All SNC determinations are reasonable and accurate, although the final decision by management is sometimes delayed. On average, it took 269 days to make a SNC determination, with the longest being 567 days and the shortest 148 days. Eight out of 15 SNC determinations were made within 270 days. Relevant metrics: Page 10 of 19 ------- iğt ^ m ivt u j rv x- Natl Natl State State State Metric II) Number and Description , .. _ 1 Goal Avg N D % 8b Timeliness of SNC determinations [GOAL] ) 100% ( 76.5% | 8 | 15 | 53.3% State Response: Staff shortages have sometimes delayed meeting this deadline. We are working to hire new staff and improve training. As part of the multipurpose grant we will be performing process mapping on the enforcement process to determine any areas that can be improved to assure the timeliness of enforcement determinations. The initial process mapping event has been scheduled for February 20, after which several follow up meetings and discussions will be needed before a revised enforcement process is adopted. Once adopted the new process can be implemented and we will be able to evaluate its effectiveness. Recommendation: Ucc Due Dale Recommendation The state will be receiving a multi-purpose grant to investigate and implement lean management methods. EPA recommends KDHE to include this timeliness of SNC determinations in its efforts. Report to 03/01/2021 I EPA on monthly calls and a written report semi-annually on the progress/efforts. EPA will deem this recommendation closed when the state achieves 85% or greater on this metric measured annually in the frozen data. RCRA Element 4 - Enforcement Finding 4-1 Area for Attention Summary: Certain enforcement actions exceed the expected timelines for conclusion. Explanation: Some actions were taken against particularly argumentative respondents. Two respondents appealed the state determinations and took their cases to hearing, thus dragging out the process. Two cases are not that many, but when only four actions occurred during the review period, it Page 11 of 19 ------- appears to be a large percentage of cases. The state resolves cases swiftly when respondents do not appeal. EPA Response to State Comments: To evaluate the KDHE's timeliness metric during the program review, the EPA used metric 10a to analyze the percentage of year-reviewed and previous-year significant noncomplier (SNC) designations addressed with a formal enforcement action or referral during the year reviewed and within 360 days of Day Zero as the criteria. Relevant metrics: Metric ID Number and Description Natl Natl State State State Goal Avg N D % 10a Timely enforcement taken to address SNC [GOAL] 100% 87.7% 50% State Response: EPA s report does not identify what the expected timeline is for conclusion of enforcement actions; therefore, we don't know what metric we are expected to achieve. We strive to complete enforcement actions in a timely measure. The enforcement process mapping event that is scheduled for February 20 will help us to identify changes in the process to make it more efficient and effective. Also, as noted in EP As report, when facilities appeal an order the timeline for completion is often delayed beyond our control by the administrative process. Even during the appeal process we keep working to settle the case to shorten the time as much as possible. RCRA Element 4 - Enforcement Finding 4-2 Meets or Exceeds Expectations Summary: All enforcement actions were taken to conclusion and resulted in facilities return to compliance. Explanation: KDHE had 15 facilities in significant noncompliance and 14 facilities in secondary violation and concluded them all. Each enforcement response action was appropriate and returned the violating facility to compliance. Page 12 of 19 ------- Relevant metrics: 10b Appropriate enforcement taken to address State Response: None RCRA Element 5 - Penalties Finding 5-1 Area for Improvement Summary: KDHE penalty guidance does not specifically address economic benefit of noncompliance and thus penalty calculations do not account for EBN. Explanation: KDHE's penalty policy is clear and concise, but it does not specifically address the economic benefit of non-compliance (EBN) for individual violations. EBN is unique for each violation observed during an inspection, but the policy presents a generic, uncalculated, extra amount expected to cover EBN in every case. EPA Response to State comments: EPA accepts KDHE's revised due date of August 31, 2020. The report language due date has been amended from June 30, 2020 to the revised date of August 31, 2020 for this finding. Relevant metrics: 11a Gravity and economic benefit [GOAL] 100% 0 15 0% Page 13 of 19 ------- State Response: We accept EPA's recommendations and will work to meet the requirements in the following manner. We have determined that it has been several years since the penalty matrix was implemented and it should now be reassessed. As part of that reassessment we will be investigating the possibility of including a new line for EBN. However, we feel that the proposed deadline of June 30, 2020 for submitting a draft, revised penalty guidance is insufficient and would like this deadline to be extended until August 31, 2020. Recommendation EPA recommends KDHE review its penalty policy and draft requirements to address EBN. EPA also recommends that KDHE incorporate these requirements into their current penalty calculation worksheet. The draft and updated worksheet should be submitted to EPA by August 31, 2020 for review. The EPA has resources to assist the state in this endeavor. At the end of FY20, EPA will review a selection of penalty calculations, and if EPA determines that the policy is appropriately being applied and EBN is being accounted for this recommendation will be closed. RCRA Element 5 - Penalties Finding 5-2 Meets or Exceeds Expectations Summary: KDHE properly uses its penalty guidance and obtains penalties appropriate to that guidance. Explanation: KDHE's penalty policy is clear and concise. It yields penalties appropriate to the violations considering the state's statutory maximum. KDHE files contained documentation of penalties collected. Relevant metrics: Recommendation: Due Date # 1 08/31/2020 Page 14 of 19 ------- Metric ID Number and Description Natl Goal Natl Avg State N State D State % 12a Documentation of rationale for difference between initial penalty calculation and final penalty [GOAL] 100% 5 5 100% 12b Penalty collection [GOAL] 100% 14 14 100% State Response: None Page 15 of 19 ------- Appendix Office of Legal Services Curtis Slate Office Building 1000 5W Jackson St., Suite 560 Topeko, KS 66612-1368 ^nsas Department of Health and Environment Phone: 785-296-533-) Fox: 785-559-4272 www.lsdheks.gov Lee A. Normon, M.D., Secretory Laura Kelly, Governor January 27,2020 Mr. David Cozad, Director Enforcement and Compliance Assurance Division U.S. Environmental Protection Agency Region 7 11201 Renner Boulevard Lenexa, KS 66219 RECEIVED JAN 31 Z020 ECAD/CHEMICAL Dear Mr. Cozad: On December 16,2019, the KDHE Bureau of Waste Management received EPA's draft report for the State Review Framework of the Kansas RCRA Enforcement Program. We appreciate EPA's comments and guidance as we seek to continuously improve our program. Attached is our response to the draft report addressing the findings that specify "Areas for Improvement" Please let me know if you have any questions about our response. Thank you for conducting this review efficiently and professionally. Sincerely, Julie Coleman, Director Bureau of Waste Management Leo Henning, DOE Ken Powell, BWM Brian Burbeck, BWM Erich Glave, BEFS File Page 16 of 19 ------- F.P.-Vs Draft Report for the State Revie ğ r n. of BWM's RCRA Enforcement Program KDHE Responie, January 27, 2020 Page 1 of 3 I his response id dresses timings tron lirA s draft report that were assigned a ri Impro' Page 17 of 19 ------- EPA's Draft Report for the Stiff Review Framework of i WW's RCRA Enforcement Program KDIiEResponse, January 27,2020 Page 2 of 3 - Violation* 1 Page 18 of 19 ------- F.PA's Draft Report for the State Review Framework of BWM's RCRA Enforcement Program KDHE Response, January 27,2020 Page 3 of 3 a y Page 19 of 19 ------- |