STATE REVIEW FRAMEWORK
West Virginia
Clean Water Act
Clean Air Act
Resource Conservation and Recovery Act
Implementation in Federal Fiscal Year 2020
and in Federal Fiscal Year 2019 for CWA NPDES Program
U.S. Environmental Protection Agency
Region 3
Final Report
January 31, 2022
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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 Water Act - (CWA) Core Program Review Year FY 2019
Dates of File Review: July 19-23, 2021
EPA EC AD contacts include:
Allison Gieda
Mike Greenwald
Kaitlin McLaughlin
Amanda Pruzinsky
WVDEP contacts:
Jeremy W. Bandy, Chief Inspector, Division of Water and Waste Management
Brad Wright, Assistant Chief Inspector Division of Water and Waste Management
Clean Water Act - (CWA) Mining Program Review Year FY 2020
Dates of File Review: July 19-23, 2021
EPA EC AD contacts include:
Chad Harsh
Ingrid Hopkins
Monica Crosby
WVDEP contact:
John T. Vernon, Deputy Director for Mining and Reclamation
Clean Air Act (CAA) Review Year FY 2020
Dates of File Review: July 12-15, 2021
EPA EC AD contacts include:
Kurt Eisner
Erin Malone
Isabella Powers
Carly Joseph
WVDEP contacts:
Jessie Adkins, Assistant Director, Division of Air Quality, Compliance and Enforcement Section
James Robertson Supervisor, Division of Air Quality, Compliance and Enforcement Section
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Resource Conservation and Recovery Act (RCRA) Review Year FY 2020
Dates of File Review: July 19-22, 2021.
EPA EC AD contacts include:
Eric Greenwood (ECAD), Enforcement Lead
Andrew Dinsmore, RCRA Section Chief
Rachel Mirro (LCRD), Program Lead
WVDEP Division of Water and Waste Management contacts:
Joseph Sizemore, Assistant Chief Inspector, Environmental Enforcement and Hazardous Waste
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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:
Clean Water Act (CWA) Core Program
• WVDEP consistently produces inspection reports that contain sufficient documentation to
determine compliance at facilities.
• WVDEP consistently documented penalty calculations for FY 2019 that included gravity
and economic benefit, the difference between the initial penalty calculation and amount
collected, and the collection of penalties.
Clean Water Act (CWA) Mining
• The WVDEP Mining Program consistently issues enforcement responses that address
violations in an appropriate manner to return the facilities to compliance.
Clean Air Act (CAA)
• The EPA Review Team found WVDEP's enforcement program to be strong. WVDEP
included corrective actions in all formal responses and took timely and appropriate
enforcement action consistent with the HPV policy.
Resource Conservation and Recovery Act (RCRA)
• WVDEP consistently completed inspection reports in a timely manner. The average
report completion time for the 37 files reviewed, using a 60-day standard, was 22.6 days.
• WVDEP successfully collects penalties and is consistent in its documentation of penalty
calculations including when necessary, a rationale for differences between initial and
final penalties.
• WVDEP took appropriate enforcement action to address violations observed in 93.8% of
files reviewed and administered enforcement actions that sufficiently returned the site to
compliance 96.6% of the time.
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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 Water Act (CWA) Core Program
• Data management deficiencies were consistently noted throughout the file review process
(metric2b). The review team found that the WVDEP Core Program does not currently
enter informal enforcement actions into the national database and permit issuance dates
are not consistently accurate in the national database.
• WVDEP did not consistently complete inspection reports within the applicable
timeframe.
Clean Water Act (CWA) Mining
• Data management deficiencies were consistently noted throughout the file review process
(metric2b) for the WVDEP Mining Program. The review team found that the Mining
Program does not currently enter informal and formal enforcement actions or SEVs into
the national database.
Clean Air Act (CAA)
• WVDEP penalty matrix does not include a section for an economic benefit component.
All penalty calculations reviewed included a gravity component. However, there was no
economic benefit component included in the penalty matrix. WVDEP reported that they
considered economic benefit and determined it to be zero for all of the files that EPA
reviewed. However, there were no calculations or documentation to support that
economic benefit was being calculated or why it was determined to be zero.
Resource Conservation and Recovery Act (RCRA)
There are no priority issues to address.
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Clean Water Act Findings
CWA Element 1 - Data (Core Program FY 2019)
Finding 1-1
Area for Improvement
Recurring Issue:
Recurring from Round 3
Summary:
Data management deficiencies were consistently noted throughout the file review process
(metric2b). The review team found that in FY2019 the WVDEP Core Program does not currently
enter informal enforcement actions into the national database and permit issuance dates are not
consistently accurate in the national database.
Explanation:
The CWA-NPDES e-Reporting Rule ("eRule"), effective on December 21, 2015, required
electronic submission by NPDES permittees of all NPDES data required by the CWA, federal
regulations, policy, guidance, and EPA-State agreements. The eRule also requires states and other
regulatory authorities to share data electronically with EPA. The data to be shared by these
regulatory authorities include permit, compliance monitoring/inspection, violation determinations
and enforcement action data. Minimum data requirements (MDRs) related to facility identifiers,
comprehensive inspections, formal enforcement actions, single event violations, and the majority
of NPDES permit data are being entered into the National Database accurately.
WVDEP's Core Program does not currently enter informal enforcement actions into the national
database. SRF Round 3 noted that WV municipal and industrial wastewater programs did not enter
or upload informal enforcement actions into the national database. Additionally, permit issuance
dates are not consistently accurate in the national database. Lastly, single event violations (SEVs)
and Orders are not consistently being closed out in the national database which may be causing
facilities to be in violation from the time of the SEV start date and Order due date. WVDEP's Core
Program has not been able to enter informal enforcement actions into the national database with
its existing batch upload process utilizing its Environmental Resources Information System
(ERIS).
However, WVDEP is currently working on the implementation of a new inspection and
enforcement management software program that will address the data entry issues. WVDEP
anticipates June 2022 as the final delivery date of its new software. Additionally, WVDEP will
work with its permits staff regarding permit issuance dates in the national database.
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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 Total
100% , .9 i 25 i 36%
State Response:
WVDEP's ERIS system is not capable of feeding informal actions to ICIS. The upcoming
inspection software, scheduled to be delivered in June 2022, will have the ability to upload
informal actions and other required data elements.
The new Compliance Assurance Manager position within WVDEP-EE that will be filled in early
2022 will be tasked with, among other things, improving the consistency of closeout for
compliance tasks in orders and SEVS. WVDEP was one of the top 6 states nationally for SEV
uploads at the time of this review and as a result has a significant volume of SEVs to monitor for
return to compliance.
WVDEP agrees that WVDEP and EPA have been working extensively to improve overall data
quality. As described below in Finding 1-2, WVDEP exceeds the national average for data
completeness. WVDEP has consistently fed more data earlier than other states.
WVDEP's EE staff will work with DWWM permitting regarding permit issuance dates in ICIS.
That data feed is not processed in relation to any inspection or enforcement activity and may be
more appropriately addressed in a Permit Quality Review.
Recommendation:
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Ucc
#
Due Dale
Recommendation
1
06/30/2022
WVDEP will roll out its new inspection and enforcement management
software that will ensure minimum data requirements are being entered
into ICIS production.
2
01/31/2023
After the first full quarter of implementation of the new inspection and
enforcement management software, EPA will review a representative
number of files and informal enforcement actions to confirm that
appropriate data is being entered into ICIS.
CWA Element 1 - Data (Core Program FY 2019)
Finding 1-2
Meets or Exceeds Expectations
Recurring Issue:
No
Summary:
In FY 2019, WVDEP's Core Program met or exceeded the national goals of 95% for the data
metrics for completeness of data entry on major and non-major permit limits and completeness of
data entry on major and non-major discharge monitoring reports.
Explanation:
Permit limit data entry rate for major and non-major facilities for the Core program in FY 2019
was calculated to be 99.4% which is greater than the national goal of 95% (metric lb5). DMR data
entry rate for major and non-major facilities for the Core program in FY 2019 was calculated to
be 97.77%) which is greater than the national goal of 95% (metric lb6).
Relevant metrics:
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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%
93.5%
465
468
99.4%
lb6 Completeness of data entry on major and
non-major discharge monitoring reports.
[GOAL]
95%
92.3%
14174
14498
97.8%
State Response:
CWA Element 1 - Data (Mining Program FY 2020)
Finding 1-3
Area for Improvement
Recurring Issue:
Recurring from Round 3
Summary:
In FY2020 data management deficiencies were consistently noted throughout the file review
process (metric2b) for the WVDEP Mining Program. The review team found that the Mining
Program does not currently enter informal and formal enforcement actions or SEVs into the
national database.
Explanation:
The CWA-NPDES e-Reporting Rule ("eRule"), effective on December 21, 2015, required
electronic submission by NPDES permittees of all NPDES data required by the CWA, federal
regulations, policy, guidance, and EPA-State agreements. The eRule also requires states and other
regulatory authorities to share data electronically with EPA. The data to be shared by these
regulatory authorities include permit, compliance monitoring/inspection, violation determinations
and enforcement action data. Minimum data requirements (MDRs) related to facility identifiers,
comprehensive inspections, formal enforcement actions, single event violations, and the majority
of NPDES permit data are being entered into the National Database accurately.
WVDEP's Mining Program does not currently enter informal and formal enforcement actions or
SEVs into the national database. SRF Round 3 noted that WVDEP's NPDES Mining Program did
not enter or upload NPDES inspection or enforcement data into the national data system).
WVDEP's Mining Program has not been able to enter formal and informal enforcement actions or
SEVs into the national database with its existing batch upload process utilizing its Environmental
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Resources Information System (ERIS). However, WVDEP Mining Program is currently working
on the implementation of a new enforcement module that will address the data entry and upload
issues. WVDEP anticipates that the enforcement module will be operational by the end of
December 2021 and they will be able to begin entering and uploading data.
Relevant metrics:
... , . Ir. . . rv -x- Natl Natl State State State
Metric ID Number and Description , .. _ ; „ , ,
1 Goal Avg N D Total
2b (Mining) file reviewed where data are
accurately reflected in national data system, ICS
100% 5 20
25%
State Response:
Mining has historically entered data into ICIS for Major Facilities including inspection and
enforcement data. Due to the number of Nonmajor Facilities regulated by Mining, requiring
enforcement data, this functionality has been delayed in development. Mining has concentrated on
instituting other required electronic data submissions under federal rule and addressing Goal 1-
Compliance Data Completeness and Accuracy per the National Compliance Initiative
Implementation Strategy (NCI). This function is planned to be in operational test by the end of
December 2021. The recent hiring of personnel will aid in submitting this data electronically for
both Major and Nonmajor facilities.
Recommendation:
Due Dale Recommendation
1
03/31/2022
WVDEP Mining Program will have their enforcement module
operational, which will ensure minimum data requirements are being
entered into ICIS production.
2
06/30/2023
During the second quarter of FY 2023, EPA will review a
representative number of files for informal and formal enforcement
actions and SEVs to confirm that appropriate data is being entered into
ICIS.
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CWA Element 1 - Data (Mining Program FY 2020)
Finding 1-4
Meets or Exceeds Expectations
Recurring Issue:
No
Summary:
In FY 2020, WVDEP's Mining Program met or exceeded the national goals of 95% for the data
metrics for completeness of data entry on major and non-major permit limits.
Explanation:
Permit limit data entry rate for major and non-major facilities for the Mining Program in FY 2020
was calculated to be 95.60% which is greater than the national goal of 95% (metric lb5)
Relevant metrics:
Metric ID Number and Description
Natl Natl State State State
Goal Avg N D Total
lb5 Completeness of data entry on major and
non-major permit limits. [GOAL]
95%
1319
1380 95.6%
State Response:
CWA Element 1 - Data (Mining Program FY 2020)
Finding 1-5
Area for Attention
Recurring Issue:
No
Summary:
In FY 2020 WVDEP's Mining Program did not consistently enter DMR data for major and non-
major facilities.
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Explanation:
DMR data entry rate for major and non-major facilities for the Mining Program in FY 2020 was
calculated to be 81.69% which is less than the national goal of 95% (metric lb6). This is likely
due to data flow issues from ERIS to ICIS. WVDEP and EPA are currently working to improve
data flow.
Relevant metrics:
, . ,n„ ... Natl Natl State State State
Metric ID Number and Description „ , - .. _ . , ,
1 Goal Avg N D Total
lb6 Completeness of data entry on major and
non-major discharge monitoring reports. [ 95% [ | 158505 [ 194024 | 81.7%
[GOAL]
State Response:
Mining has recently partnered with EPA and EPA contractor ERG to help identify data flow issues
and instances of false SNC tagging due to data interpretation. Mining continues to make changes
to the state ERIS data system when identified to correct data flow issues. Mining and the Core
Program have partnered in an EPA grant to improve both speed and data correctness in
downloaded electronic data from facility permit responsible parties. This is scheduled to begin for
Mining in 2022.
CWA Element 2 - Inspections (Core Program FY 2019)
Finding 2-1
Meets or Exceeds Expectations
Recurring Issue:
No
Summary:
In FY 2019, the WVDEP Core Program consistently produced inspection reports that contained
sufficient documentation to determine compliance at facilities.
Explanation:
95.5%) of the FY 2019 inspection reports reviewed in the Core Program were identified as
sufficient to determine compliance.
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Relevant metrics:
»f , . .. , , „ . Natl Natl State State State
Metric II) Number and Description „ , .. . ,
1 Goal Avg N D Total
6a Inspection reports complete and sufficient to
determine compliance at the facility. [GOAL]
100% I [ 21
22 95.5%
State Response:
CWA Element 2 - Inspections (Core Program FY 2019)
Finding 2-2
Area for Improvement
Recurring Issue:
No
Summary:
In FY 2019, the WVDEP Core Program did not consistently complete inspection reports within
the applicable timeframe.
Explanation:
To determine this finding, the review team used a 60-day completion timeline, based on EPA's
2018 Interim Policy on Inspection Report Timeliness and Standardization. Using EPA's Policy to
evaluate timeliness, 63.6% of inspection reports were completed within the applicable timeframe
and the average number of days for WVDEP to complete inspection reports is 66. During the file
review process, WVDEP stated that it flagged the timely completion of inspection reports as a
concern in FY 2019 and is working on improvements to this metric internally. WVDEP has noted
improvements in the timely completion of inspection reports since 2019 and requested that EPA
share its 2018 Interim Policy on Inspection Report Timeliness and Standardization for their
reference and possible implementation.
WVDEP completed recommendation #1 ahead of schedule on 12/7/21 and submitted the SOP to
EPA for review and approval. Currently, EPA is reviewing the SOP. These recommendations will
be closed out once the final report is issued.
Relevant metrics:
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»f , . .. , , „ . Natl Natl State State State
Metric ID Number and Description , ... _ ; ~ ,
1 Goal Avg N D Total
6b Timeliness of inspection report completion , __n/ j | , . I „ | ,n/
r„„ . , , 100% 14 22 63.6%
[GOAL]
State Response:
The timeframe for submission of inspection reports is outlined in the performance standards
established yearly for WVDEP inspection staff. As increased focus has been placed on quality,
consistency, and completeness of inspection reports, the timeliness has suffered in recent years.
Following this review WVDEP created a more descriptive internal guidance on report timeliness
to be incorporated into performance expectations beginning in 2022.
Recommendation:
Due Dale Recommendation
1
06/30/2022
The WVDEP Core program should develop an SOP for issuing
inspection reports within an appropriate timeframe. This SOP should
detail a process with timelines for drafting the report, manager review,
final signature, and transmittal to the facility. WVDEP shall submit the
SOP to EPA for approval.
2
07/31/2022
EPA will review the SOP and will provide comments to WVDEP (if
necessary) or provide approval. Upon EPA approval, WVDEP shall
implement the SOP immediately.
3
01/31/2023
After the first full quarter of implementation of the new SOP, EPA will
review a representative number of completed inspection files to
confirm that inspection reports are issued within the timeframe
established in the approved SOP.
CWA Element 2 - Inspections (Core Program FY 2019)
Finding 2-3
Meets or Exceeds Expectations
Recurring Issue:
No
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Summary:
WVDEP's Core Program met or exceeded the National Goal and its FY 2019 Compliance
Monitoring Strategy ("CMS") commitments for inspection coverage of NPDES facilities (metrics
4a4, 4a5, 4a7, 4a8, 4a9, 4al0, 4all, 5al, 5b 1 and 5b2).
Explanation:
WVDEP's Core Program met or exceeded the National Goal and its FY2019 CMS commitments
for inspection coverage of:
1. NPDES majors;
2. NPDES non-majors with individual permits;
3. NPDES non-majors with general permits;
4. CSO inspections;
5. SSO inspections;
6. Phase I and IIMS4 audits or inspections;
7. Industrial stormwater inspections;
8. Phase I and II construction stormwater inspections;
9. Comprehensive large and medium NPDES-permitted CAFOs; and
10. Sludge/biosolids inspections at each major POTW.
There were no commitments to perform CAFO inspections in the FY2019 CMS. Additional details
on CMS commitments and accomplishments can be found in Metric spreadsheet 4a.
Relevant metrics:
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Metric ID Number and Description
Natl Goal
Natl
Avg
State
N
State
D
State
Total
4a 10 Number of comprehensive
inspections of large and medium
concentrated animal feeding
operations (CAFOs) [GOAL]
100% of
commitments'^
1
0
1
4al 1 Number of sludge/biosolids
inspections at each major POTW.
[GOAL]
100% of
commitments%
9
9
100%
4a4 Number of CSO inspections.
[GOAL]
100% of
commitments%
13
12
108.3%
4a5 Number of SSO inspections.
[GOAL]
100% of
commitments%
14
12
116.7%
4a7 Number of Phase I and IIMS4
audits or inspections. [GOAL]
100% of
commitments%
11
11
100%
4a8 Number of industrial stormwater
inspections. [GOAL]
100% of
commitments%
143
132
108.3%
4a9 Number of Phase I and Phase II
construction stormwater inspections.
[GOAL]
100% of
commitments%
182
157
115.9%
5al Inspection coverage of NPDES
majors. [GOAL]
100%
45
47
95.7%
5b 1 Inspections coverage of NPDES
non-majors with individual permits
[GOAL]
100%
76
73
104.1%
5b2 Inspections coverage of NPDES
non-majors with general permits
[GOAL]
100%
234
198
118.2%
State Response:
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CWA Element 2 - Inspections (Mining Program FY 2020)
Finding 2-4
Meets or Exceeds Expectations
Recurring Issue:
No
Summary:
In FY 2020, the WVDEP Mining Program consistently produced inspection reports that contained
sufficient documentation to determine compliance at facilities and were completed timely.
Explanation:
100% of the FY 2020 inspection reports reviewed in the Mining Program were identified as
sufficient to determine compliance and 100% were completed timely.
Relevant metrics:
Metric ID Number and Description
Natl
Goal
Natl
Avg
State
N
State
D
State
Total
6a (Mining) inspection reports complete and
sufficient to determine compliance
100%
20
20
100% 1
|
|
6b Timeliness of inspection report completion
[GOAL]
100%
20
20
100%
State Response:
CWA Element 2 - Inspections (Mining Program FY 2020)
Finding 2-5
Meets or Exceeds Expectations
Recurring Issue:
No
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Summary:
In FY 2020 WVDEP's Mining Program exceeded the National Compliance Monitoring Strategy
("CMS") goal for inspection coverage ofNPDES facilities.
Explanation:
In FY2020, WVDEP's Mining Program far exceeded the national goal for inspection coverage of
non-majors. While the WVDEP Mining Program inspects all NPDES facilities on a regular basis,
historically there have been no specific CMS commitments. WVDEP and EPA intend to negotiate
inspection commitments during the FY 2023 CMS negotiation cycle.
Relevant metrics:
, • ¦ r\ at ¦ .... Natl Natl State State State
Metric ID Number and Description , .. _ - _ „ ,
1 Goal Avg N D Total
5b 1 Inspection coverage ofNPDES non-majors
with individual permits [GOAL]
100%
1276 310 411.6%
State Response:
Mining will work with EPA to develop a CMS that meets both EPA/CMS and Mining's
requirements.
CWA Element 3 - Violations (Core Program FY 2019)
Finding 3-1
Meets or Exceeds Expectations
Recurring Issue:
No
Summary:
In FY 2019, the WVDEP Core Program consistently produced inspection reports with sufficient
documentation leading to an accurate compliance determination (metric 7e).
Explanation:
The file review determined that WVDEP's Core Program made an accurate compliance
determination in 90.9% of inspection reports reviewed for FY2019.
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Relevant metrics:
Metric ID Number and Description
7e Accuracy of compliance determinations
[GOAL]
Natl
Goal
100%
Natl
Avg
State
N
20
State
D
22
State
Total
90.9%
7j 1 Number of major and non-major facilities
with single-event violations reported in the
review year.
329
7kl Major and non-major facilities in
noncompliance.
18.4%
5659
9774
57.9% !
8a3 Percentage of major facilities in SNC and
non-major facilities Category I noncompliance
during the reporting year.
8.1%
4852
9633
50.4%
State Response:
CWA Element 3 - Violations (Mining Program FY 2019)
Finding 3-2
Meets or Exceeds Expectations
Recurring Issue:
No
Summary:
In FY 2020 the WVDEP Mining Program consistently produced inspection reports with sufficient
documentation leading to an accurate compliance determination (metric 7e).
Explanation:
The file review determined that WVDEP's Mining Program made an accurate compliance
determination in 100% of inspection reports reviewed for FY20.
Relevant metrics:
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Metric ID Number and Description
Natl
Goal
Natl
Avg
State
N
State
D
State
Total
7e Accuracy of compliance determinations
[GOAL]
100%
18
18
100%
7kl Major and non-major facilities in
noncompliance.
1194
1553
76.9%
8a3 Percentage of major facilities in SNC and
non-major facilities Category I noncompliance
during the reporting year.
859
1549
55.5%
State Response:
Mining is currently working with EPA, as stated, to meet the NCI. Both increased NCI Goal 1-
Compliance Data Completeness and Accuracy, and the uploading of formal and informal
enforcement actions should decrease the data error SNC rate and also resolve violations in
ICIS/ECHO.
CWA Element 4 - Enforcement (Core Program FY 2019)
Finding 4-1
Area for Attention
Recurring Issue:
No
Summary:
In FY2019, the WVDEP Core program did not always issue enforcement responses that addressed
violations in an appropriate manner to return the facilities to compliance.
Explanation:
The file review determined that 78.6% of enforcement responses returned or will return facilities
in violation to compliance for FY19. In total, there were six enforcement responses that did not or
would not return the facilities to compliance. During the file review process, it was noted that
WVDEP consistently issues informal enforcement in the form of Notices of Violation (NOVs) to
facilities in an effort to achieve compliance. Of the six enforcement responses that did not return
the facility to compliance, five were issued NOVs that did not result in the facility fixing the
violations identified or developing a schedule to achieve compliance. Additionally, one facility
had continuous pretreatment outlet violations that were identified during an inspection, but were
not addressed in an enforcement action. At the time of the file review, the WVDEP Core Program
was in the process of hiring an additional staff member with duties that will include, among other
22
-------
items, tracking facility return to compliance and enforcing SNC. WVDEP anticipates that these
issues will be largely addressed once the new staff member is brought onboard.
Relevant metrics:
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%
22
28
78.6%
State Response:
Notices of Violation (NOVs) issued by WVDEP are prohibited from directing action on the part
of the recipient. The West Virginia Environmental Quality Board has stipulated that NOVs may
outline the violation observed and corrective actions if they were discussed, but directives can only
be given in orders or other formal actions. A compliance schedule cannot be required in response
to an NOV. As a result of this trait of NOVs and WVDEP's policy of using escalating enforcement,
a facility will receive NOVs that will be followed with a formal action if they do not return to
compliance based on the NOV. This may be a factor in this finding. As noted in EPA's explanation,
WVDEP anticipates the new Compliance Assurance Manager will help improve enforcement
quality overall and will improve performance in this metric.
CWA Element 4 - Enforcement (Core Program FY 2019)
Finding 4-2
Meets or Exceeds Expectations
Recurring Issue:
No
Summary:
In FY2019, the WVDEP Core Program initiated enforcement responses that addressed violations
in an appropriate manner.
Explanation:
89.7% of enforcement responses addressed violations in an appropriate manner as measured under
metric 10b.
23
-------
Relevant metrics:
Metric ID Number and Description
Natl
Goal
Natl
Avg
State
N
State
D
State
Total
lOal Percentage of major NPDES facilities
with formal enforcement action taken in a
timely manner in response to SNC violations
14.4%
1
18
5.6%
10b Enforcement responses reviewed that
address violations in an appropriate manner
[GOAL]
100%
| 26
29
89.7%
State Response:
CWA Element 4 - Enforcement (Mining Program FY 2020)
Finding 4-3
Meets or Exceeds Expectations
Recurring Issue:
No
Summary:
In FY2020, the WVDEP Mining Program consistently issued enforcement responses that
addressed violations in an appropriate manner to return the facilities to compliance.
Explanation:
The file review determined that as measured under metric 9a, 91.7% of enforcement responses
returned or will return facilities in violation to compliance and that 88.9% of enforcement
responses addressed violations in an appropriate manner as measured under metric 10b.
Relevant metrics:
24
-------
Metric ID Number and Description
Natl
Goal
Natl
Avg
State
N
State
D
State
Total
10b (Mining) enforcement responses reviewed
that address violations in an appropriate manner
100%
8
9
88.9%
9a (Mining) percentage of enforcement
responses that will return to compliance or on
the path to compliance
100%
| 1 1
12
91.7%
State Response:
CWA Element 5 - Penalties (Core Program FY 2019)
Finding 5-1
Meets or Exceeds Expectations
Recurring Issue:
No
Summary:
WVDEP's Core Program consistently documents penalty calculations for FY2019 that include
gravity and economic benefit (metric 11a). WVDEP's Core Program consistently documents the
difference between the initial penalty calculation and amount collected for FY19 (metric 12a).
WVDEP's Core Program consistently document the collection of penalties forFY19 (metric 12b).
Explanation:
The SRF file review of WVDEP's Core Program identified that 100% of enforcement files
contained documentation of penalty calculations that included gravity and economic benefit as
measured under metric 11a. WVDEP's penalty matrices/spreadsheets were very detailed and
helpful in understanding how WVDEP calculated the gravity and economic benefit component of
the penalty. Additionally, 100% of enforcement files contained adequate documentation where
final penalties were reduced from the initial assessed penalty as measured under metric 12a.
Finally, 100% of enforcement files reviewed contained documentation of the penalty collection or
in the case of one facility, included documentation that WVDEP has taken appropriate follow-up
actions as measured under metric 12b.
Relevant metrics:
25
-------
Metric ID Number and Description
Natl
Goal
Natl
Avg
State
N
State
D
State
Total
1 la Penalty calculations reviewed that document
and include gravity and economic benefit
[GOAL]
100%
7
7
100%
12a Documentation of rationale for difference
between initial penalty calculation and final
penalty [GOAL]
100%
4
4
100%
12b Penalties collected [GOAL]
100%
7
7
100%
State Response:
CWA Element 5 - Penalties (Mining Program FY 2020)
Finding 5-2
Meets or Exceeds Expectations
Recurring Issue:
No
Summary:
WVDEP's Mining Program consistently documents penalty calculations that include gravity and
economic benefit (metric 11a) for FY2020. WVDEP's Mining Program consistently documents
the difference between the initial penalty calculation and amount collected for FY2020 (metric
12a). WVDEP's Mining Program consistently document the collection of penalties for FY2020
(metric 12b).
Explanation:
The SRF file review of WVDEP's Mining Program identified that 80% of enforcement files
contained documentation of penalty calculations that included gravity and economic benefit as
measured under metric 11a. One file did not contain an economic benefit calculation, which has
been addressed. WVDEP's penalty matrices/spreadsheets were very detailed and helpful in
understanding how the Mining Program calculated the gravity and economic benefit component
of the penalty. Additionally, 100% of enforcement files contained adequate documentation where
final penalties were reduced from the initial assessed penalty as measured under metric 12a.
Finally, 100% of enforcement files reviewed contained documentation of the penalty collection as
measured under metric 12b.
26
-------
Relevant metrics:
Metric ID Number and Description
Natl
Goal
Natl
Avg
State
N
State
D
State
Total
1 la (Mining) penalty calculations that document
and include gravity and economic benefit
100%
4
5
80% j
|
|
12a Documentation of rationale for difference
between initial penalty calculation and final
100%
5
5
100%
penalty [GOAL]
12b Penalties collected [GOAL]
100%
' 5
5
100% 1
!
i
State Response:
27
-------
Clean Air Act Findings
CAA Element 1 - Data
Finding 1-1
Meets or Exceeds Expectations
Recurring Issue:
No
Summary:
WVDEP entered the majority of their HPV Determination and Compliance Monitoring Data into
ICIS-Air in a timely manner.
Explanation:
WVDEP entered the only HPV determination and the Compliance Monitoring Minimum Data
Requirements (MDRs) timely into ICIS-Air at a rate > or = 90%. Most of the untimely Compliance
Monitoring MDRs were entered after the start of COVID-19 (i.e., March 2020). In addition,
WVDEP entered timely Compliance Monitoring MDRs at a rate of > 92% in FY 2018 and FY
2019.
Relevant metrics:
Metric ID Number and Description
Natl Natl State State State
Goal Avg N D Total
3a2 Timely reporting of HPV determinations
[GOAL]
| 100%
40.6%
1
1
100%
3b 1 Timely reporting of compliance
monitoring MDRs [GOAL]
I 100%
74.3%
318
353
90.1%
State Response:
CAA Element 1 - Data
Finding 1-2
Area for Attention
28
-------
Recurring Issue:
No
Summary:
WVDEP enters approximately 75-80% of their stack test and enforcement Minimum Data
Requirement (MDR) data into ICIS in a timely manner. In addition, the EPA Review team found
approximately 77% of the files reviewed to have complete accurate data when comparing ICIS vs.
the files.
Explanation:
Metric 3b2 (Timely reporting of stack test dates and results): For FY 2020, > 50% of the "untimely"
entries were for stack tests that took place prior to the beginning of COVID-19 (i.e., March 2020).
WV reported that they have recently hired additional staff to help with ICIS Data Entry. The
performance of this metric for FY 2021 (as of 7/18/21) is at 93.1%. Finally, note that since the last
SRF, the performance results for this metric has steadily improved. Namely: FY 2017 - 30%; FY
2018 - 73%; FY 2019 - 80%.
Metric 3b3 (Timely reporting of enforcement MDRs): This metric was identified as "Area for State
Attention" during the Round 3 SRF with a performance of 81%. The last two FYs (i.e., FY 2018
and FY 2019), the performance for this metric is as follows: FY 2018 - 96%; FY 2019 - 100%.
WV reported that they have recently hired additional staff to help with ICIS Data Entry. Finally,
the performance of this metric for FY 2021 (as of 7/18/21) is at 100%.
Metric 2b (Files reviewed where data are accurately reflected in the national data system): Most
files reviewed contained accurate MDR data in ICIS. The EPA Review Team found that no file
contained more than one piece of inaccurate data.
Relevant metrics:
Metric ID Number and Description
Natl
Goal
Natl
Avg
State
N
State
D
State
Total
2b Files reviewed where data are accurately
reflected in the national data system [GOAL]
100%
20
26
76.9%
3b2 Timely reporting of stack test dates and
results [GOAL]
100%
59.4%
123
152
80.9%
3b3 Timely reporting of enforcement MDRs
[GOAL]
100%
76.3%
12
16
75%
State Response:
29
-------
CAA Element 2 - Inspections
Finding 2-1
Meets or Exceeds Expectations
Recurring Issue:
No
Summary:
WVDEP met the negotiated frequency compliance evaluations for major, SM-80 and minor
sources in their CMS plan and reviewed all Title V Compliance Certifications (TVACCs)
scheduled to be reviewed. Finally, 100% of the files reviewed documented the FCE elements .
Explanation:
WVDEP conducted 100% of the required FCEs at major, SM-80 and minor sources in their CMS
plan. The initial Data Metric Analysis (DMA), showed 18 facilities as not having a TVACC
review. After further review, the review team found that none of the 18 facilities were required to
submit a TVACC for FY 2020 primarily because either a Title V permit has not been issued for
the facility or a new Title V permit was issued in FY 2020 and a TVACC was not yet due. All
TVACCs that were scheduled to be reviewed were completed. Finally, all 14 files with an FCE
were determined to include all of the required FCE elements.
Relevant metrics:
30
-------
Metric ID Number and Description
Natl
Goal
Natl
Avg
State
N
State
D
State
Total
5a FCE coverage: majors and mega-sites
[GOAL]
100%
85.7%
104
104
100%
5b FCE coverage: SM-80s [GOAL]
100%
93.6%
24
24
100%
5c FCE coverage: minors and synthetic minors
(non-SM 80s) that are part of CMS plan or
alternative CMS Plan [GOAL]
100%
55.3%
2
2
100%
5e Reviews of Title V annual compliance
certifications completed [GOAL]
!<)<)%
158
158
100%
6a Documentation of FCE elements [GOAL]
100% 1
14
14
100%
State Response:
CAA Element 2 - Inspections
Finding 2-2
Area for Improvement
Recurring Issue:
No
Summary:
With the exception of Compliance History and Compliance Status, the CMRs were found to be
complete and well written.
Explanation:
The majority of the CMRs reviewed were very clear and organized. The inspector provided details
on the records that were reviewed, which consistently included comprehensive lists of emission
units and applicable regulations. However, the review team found that most of the CMRs reviewed
lacked complete enforcement history (since the last FCE). In addition, some files lacked complete
contact information.
Although not directly related to the assessment of the state's performance, in reviewing the CMRs,
the review team also found the reports seem to provide a definitive finding on compliance rather
than just the inspector's observations. Inspectors are only to provide their observations in the
inspection reports since one does not know what is happening the moment the inspector leaves the
31
-------
facility. CMRs stating the facility is "in compliance' may undermine future enforcement/litigation
if EPA were to assume or join a state enforcement case. EPA recommended additional language
be added to the CMR to clarify that the observations were limited to the time of the inspection.
On 07/21/21, WVDEP agreed to add the following clarifying language to their existing statement
on the CMR, "The purpose of this inspection report is to document WVDEP's observations and,
based on such observations, provide at the time of the inspection the compliance status for
requirements applicable to the facility."
Relevant metrics:
Metric ID Number and Description
Natl
Goal
Natl
Avg
State
N
State
D
State
T otal
6b Compliance monitoring reports (CMRs) or
facility files reviewed that provide sufficient
documentation to determine compliance of the
facility [GOAL]
100%
4
14
28.6% |
State Response: The DAQ will add compliance history and complete contact information to
inspection reports. DAQ does not feel it is necessary for EPA to approve this template.
The DAQ also reaffirms their commitment of 07/21/2021 to preclude making a definitive
compliance determination in the inspection report and to add the clarifying statement (or similar
language) referred to above.
Recommendation:
Due Dale Recommendation
1
04/30/2022
Add the following sections to existing CMR template: Enforcement
History (since the last FCE) and General and Facility Information.
2
06/30/2023
EPA to review random Compliance Monitoring Reports (CMRs) on a
quarterly basis to ensure that Compliance History and General and
Facility information and language is being included stating that the
observations were limited to the time of the on-site inspection in the
CMRs.
32
-------
CAA Element 3 - Violations
Finding 3-1
Meets or Exceeds Expectations
Recurring Issue:
No
Summary:
WVDEP did a thorough job in making accurate HPV and FRY determinations.
Explanation:
All compliance determinations were found to be accurately reported to ICIS and > 94% of
HPV/FRV compliance determinations were found to be accurate (file review metrics 7a and 8c
and data metric 13 respectively).
WVDEP has been consistently below the national average for data indicator metric 7al (FRV
'discovery rate' based on evaluations at active CMS sources) since the last SRF (FY 2016). EPA
reviewed the NOVs issued at CMS sources versus the Case Files created at CMS sources for every
year since FY2016 and verified that every NOV issued at a CMS source has been included in an
FRV or HPV Case File. In addition, during the file review, the EPA Review Team did not find any
violations that were not identified/reported by the inspectors. Thus, the EPA Review Team
concluded that WVDEP is identifying violations and creating the FRV and HPV Case Files in
ICIS.
With the exception of FY 2018, WVDEP has been consistently well below the national average
for data indicator metric 8a (discovery rate of HPVs at major sources) since the last SRF (FY
2016). Supplemental files were chosen to ensure HPVs are being identified. As mentioned above,
> 94% of HPVFRV compliance determinations were found to be accurate. The only HPV/FRV
compliance determination found to be inaccurate was discussed with WVDEP during the file
review closeout meeting. Therefore, EPA concluded that WVDEP is adequately creating
FRV/HPV case files.
Relevant metrics:
33
-------
Metric ID Number and Description
Natl Natl State State State
Goal Avg N D Total
13 Timeliness of HPV Identification [GOAL]
100%
83.8%
1
1
100%
7a Accurate compliance determinations
[GOAL]
100%
26
26
100%
7al FRV 'discovery rate' based on inspections
at active CMS sources
6.8%
10
240
4.2%
8a HPV discovery rate at majors
2.4%
1
183
.5%
8c Accuracy of HPV determinations [GOAL]
100%
16
17
94.1%
State Response:
CAA Element 4 - Enforcement
Finding 4-1
Meets or Exceeds Expectations
Recurring Issue:
No
Summary:
The EPA Review Team found WVDEP's enforcement program to be strong. WVDEP included
corrective actions in all formal responses and took timely and appropriate enforcement action
consistent with the HPV policy.
Explanation:
All formal enforcement responses reviewed required the facility to return to compliance if they
had not already done so at the time of the execution of the Consent Agreement. In addition, all
enforcement responses reviewed by the EPA Review Team were determined to be appropriate.
For the 2 HPVs not addressed within 180 days, they were addressed prior to Day 270 which is the
deadline to conduct the initial case consultation. Specifically, both of the HPVs were addressed by
Day 188 and Day 243. For both HPVs there was a delay in issuing the addressing actions (i.e.,
Consent Orders) to incorporate more recent non-HPV violations into single Consent Orders.
Finally, the HPV addressed on Day 243 did have a Case Development & Resolution timeline in
place by Day 225. Thus, the performance of metric 10a was not impacted.
34
-------
Relevant metrics:
Metric ID Number and Description
Natl
Goal
Natl
Avg
State
N
State
D
State
Total
10a Timeliness of addressing HPVs or
alternatively having a case development and
resolution timeline in place
100%
6
6
100%
lOal Rate of Addressing HPVs within 180
days
100%
44.2%
0
2
0%
10b Percent of HPVs that have been addressed
or removed consistent with the HPV Policy
[GOAL]
100%
5
5
100%
lObl Rate of managing HPVs without formal
enforcement action
0%
11.8%
0
2
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%
9
9
100%
State Response:
CAA Element 5 - Penalties
Finding 5-1
Meets or Exceeds Expectations
Recurring Issue:
No
Summary:
All penalties that were reduced from the initial assessed penalties had adequate justifications for
those reductions. In addition, all penalties had proof in the file that they were collected.
35
-------
Explanation:
All penalties reviewed had either 1) no penalty reduction between the assessed and final penalties
paid or 2) adequate documentation if the final penalty paid was reduced from the original assessed
penalty. Also, for all penalties collected, WV included a document for proof of payment such as
invoices and/or a check, which made it very easy to determine that the facility paid the penalty.
Relevant metrics:
Metric ID Number and Description
Natl
Goal
Natl
Avg
State
N
State
D
State
Total
12a Documentation of rationale for difference
between initial penalty calculation and final
penalty [GOAL]
100%
'
7
100% |
12b Penalties collected [GOAL]
100%
9
9
100% I
State Response:
CAA Element 5 - Penalties
Finding 5-2
Area for Improvement
Recurring Issue:
No
Summary:
All penalty calculations reviewed included a gravity component. However, there was no economic
components included in the penalty calculations.
Explanation:
The penalty matrices/spreadsheets were very detailed and helpful in understanding how WVDEP
calculated the gravity component of the penalty. Regarding economic benefit, the penalty matrix
does include a section for an economic benefit component. WVDEP reported that they considered
economic benefit and determined it to be zero for all of the files that EPA reviewed. However,
there are no calculations or documentation that there are being calculated or why they are
determined to be zero.
36
-------
Relevant metrics:
Metric ID Number and Description
Natl Natl State State State
Goal Avg N D Total
1 la Penalty calculations reviewed that document
gravity and economic benefit [GOAL]
100%
0%
State Response: Based on previous conversations with EPA Region 3 Compliance Manager, the
DAQ believes that economic benefit is not required to be determined. If the DAQ elects not to
determine economic benefit or there was no economic benefit, a line item will be included in the
penalty matrix stating, "economic benefit not determined" or "no economic benefit gained".
Recommendation:
Ucc
#
Due Dale
06/30/2022
Recommendation
Add section to existing penalty matrix that includes a calculation for
economic benefit followed by an assessment if EBN is de minis with
an explanation to this conclusion.
06/30/2023
EPA to review random penalty calculations on a quarterly basis to
ensure that Economic Benefit is being considered and documented
with 85% accuracy percentage as the goal.
37
-------
Resource Conservation and Recovery Act Findings
RCRA Element 1 - Data
Finding 1-1
Area for Attention
Recurring Issue:
No
Summary:
In 83.8% of files reviewed, all mandatory data were accurately entered into RCRAInfo, the
National database for the RCRA Program.
Explanation:
Metric 2b) Six of the 37 files reviewed were found to have inaccurate data entry or did not contain
all of the required mandatory data elements in RCRAInfo. These six instances were found to be
inaccurate or incomplete for the following reasons:
• errors in dates of action, including the issue date for a Termination of Order Letter and
dates documented for violations Returned to Compliance;
• incorrect translation of violation citations into RCRAInfo;
• omission of penalties assessed in formal actions; and
• violations entered into RCRAInfo were not captured in the corresponding enforcement
action (NOV or Consent Order).
Generally, WVDEP accurately transcribed information from the file into RCRAInfo. However,
WVDEP should lend more scrutiny to ensuring that quality checks are being performed on a
regular basis and data entered into RCRAInfo is consistent with information contained in
inspection reports and enforcement actions.
Relevant metrics:
Natl Natl State State State
Goal ; Avg N D Total
Metric ID Number and Description
2b Accurate entry of mandatory data [GOAL] 1 100% I I 31 I 37 I 83.8%
State Response:
Corrections have been made to data errors identified in the review. Controls have been put in place
that will help ensure the correct "enforcement date" will be associated with formal and informal
enforcement actions. RCRAInfo forms utilized by staff have been amended to help ensure that
enforcement actions are accurately documented.
38
-------
RCRA Element 2 - Inspections
Finding 2-1
Area for Attention
Recurring Issue:
No
Summary:
81% of files reviewed contained complete and sufficient information to determine compliance.
Explanation:
Metric 6a) 81% of files reviewed contained detailed inspection reports that accurately identified
violations and successfully supported a compliance determination. In seven instances, reviewers
found that reports lacked sufficient information, such as a detailed process description or
information on quantity and types of hazardous wastes generated, to support violation
determinations observed at the time of the inspection. The seven inspection reports with
insufficient information were identified under the following generator status:
Small Quantity Generators (SQGs)-2;
Large Quantity Generators (LQGs)-2;
Treatment, Storage, and Disposal Facilities (TSDFs)-3.
As noted in the state's response, WVDEP did not agree with the assessment of one of the large
quantity generator facility case files as insufficient. In light of the successful formal action brought
by the state as a result of the initial compliance evaluation inspection, the classification of the
facility case file in question has been amended to reflect that it is sufficient. EPA agrees with the
WVDEP response and the initial finding of eight inspection reports with insufficient information
has been changed to seven inspection reports with insufficient information, for a total of 30
satisfactory reports, or 81% sufficiency.
Relevant metrics:
39
-------
»f , . .. , , „ . Natl Natl State State State
Metric ID Number and Description , ... _ ; ~ ,
1 Goal Avg N D Total
6a Inspection reports complete and sufficient to I irir.0/ | | | | Q1 10/
1 , 1- r /—i \ a i n 100/0 J (J 31 ol.l/O
determine compliance [GOAL]
State Response:
The CEI associated with one large quantity generator facility was considered to lack sufficient
information to support violation determinations. WVDEP disagrees with this finding. The 3-19-
2020 CEI report includes 60 photos, and the report clearly documents non-compliance at the
facility to include releases to the environment as well as numerous containers of improperly
managed waste. This report resulted in a formal enforcement order which included a HW penalty
of over $78,000 dollars. The outcome shows the inspection work was successful.
RCRA Element 2 - Inspections
Finding 2-2
Meets or Exceeds Expectations
Recurring Issue:
No
Summary:
WVDEP exceeded the annual inspection coverage for large quantity generators. Additionally,
94.6% of the files reviewed had inspection reports that were completed timely.
Explanation:
Metric 6b) Because WVDEP's Hazardous Waste Program does not have its own standard for
inspection timeliness, the findings for this metric were calculated using EPA's, 2018 Interim
Policy on Inspection Report Timeliness and Standardization, which provides a 60-day window for
inspection report completion. On average, the time between the first day of the inspection (Day
Zero) and completion of the inspection report was 22.6 days.
Metric 5a) 12 of 12 (100%) TSDFs were inspected by WVDEP during the review period. The
denominator in Metric 5a has been amended, from 14 to 12, to accurately reflect the State's
contribution towards the 100% inspection coverage goal for operating TSDFs. The remaining two
TSDFs were inspected by EPA in 2019. Additional information on the scope of inspection
coverage for TSDFs and other RCRA generators, can be found in the September 2015 Compliance
Monitoring Strategy for the RCRA Subtitle C Program.
40
-------
Metric 5b) Despite complications created by the ongoing public health emergency, WVDEP was
able to adapt its inspection procedures to exceed its annual inspection goals by 15%.
Metric 5e) Metrics 5e5,5e6, and 5e7 are not identified as Goal metrics. Goal metrics, according
the SRF Round 4, RCRA Metrics Plain Language Guide, evaluate performance against a specific
numeric goal and stand alone as sufficient basis for development of a finding. Instead, 5e metrics
are informational only and numerical commitments are not required unless the agency being
evaluated is operating under an alternative compliance monitoring strategy (CMS). Since WVDEP
did not operate using an alternative CMS during the review year, the State's commitment to inspect
very small quantity generators (VSQGs), transporters, or "other" generators (e.g., Used Oil Facility
or Universal Waste Handler), is not applicable (N/A).
Furthermore, EPA has not established minimum requirements for these generator categories and
inspections are not tracked via Annual Commitment System (ACS). However, because these
generator categories are regulated under the Subtitle C Program and represent ongoing compliance
monitoring activities to achieve and maintain compliance with all RCRA requirements, files
containing these designations were selected for review.
Relevant metrics:
Metric ID Number and
Description
Natl Goal
Natl
Avg
State
N
State
D
State
Total
5a Two-year inspection coverage of
operating TSDFs [GOAL]
100%
12
12
100%
5b Annual inspection of LQGs using
BR universe [GOAL]
20%
11.5%
49
147
33.3%
5e5 One-year count of very small
quantity generators (VSQGs) with
inspections
100% of
commitments%
222
5e6 One-year count of transporters
with inspections
100% of
commitments%
5
5e7 One-year count of sites not
covered by metrics 5a - 5e6 with
inspections
100% of
commitments%
105
6b Timeliness of inspection report
completion [GOAL]
100%
35
37
94.6%
41
-------
State Response:
Related to metric 5a, it has been explained that the numerator and denominator are automatically
generated in this report from data in ECHO. The narrative explains that the two operating TSDFs
which were not inspected by WVDEP were inspected by EPA as part of our cooperative
partnership. The goal of 100% was achieved. WVDEP believes the state total should accurately
represent this accomplishment numerically in the "State Total" cell with a "100%".
RCRA Element 3 - Violations
Finding 3-1
Meets or Exceeds Expectations
Recurring Issue:
No
Summary:
In 90.9% of files reviewed, significant noncompliance (SNC) status was appropriately determined.
In 100%) of those instances, determinations were made timely and within 150 days of Day Zero.
Explanation:
Metric 7a) In three instances files were found to exhibit concerns about whether an accurate
compliance determination was made during the time of the inspection. These three files exhibited
possible inaccurate compliance determinations based on the following:
• violations cited as "Areas of Concern";
• documentation by Facility substantiating compliance; and
• failure to cite violations for Failure to Maintain and Operate a Facility (40 CFR §265.31)
during an FCI.
Relevant metrics:
42
-------
Metric ID Number and Description
Natl Natl State State State
Goal Avg N D Total
2a Long-standing secondary violators
4
4
7a Accurate compliance determinations
[GOAL]
100%
34
37
91.9%
7b Violations found during CEI and FCI
inspections
34.3%
117
425
27.5%
8a SNC identification rate at sites with CEI
and FCI
1.4%
10
821
1.2%
8b Timeliness of SNC determinations [GOAL]
100%
34.3%
10
10
100%
8c Appropriate SNC determinations [GOAL]
100%
30
33
90.9%
State Response:
RCRA Element 4 - Enforcement
Finding 4-1
Meets or Exceeds Expectations
Recurring Issue:
No
Summary:
In all ten instances reviewed, WVDEP took timely enforcement to address SNCs. Appropriate
enforcement was also taken to address secondary violators in 30 of 32 files reviewed (93.8%).
Explanation:
Metric 9a) In one instance, WVDEP did not pursue enforcement action against the original owner
of a facility for violations cited during an inspection. In this one instance, the Facility's violations
were not returned to compliance until a new owner assumed the position, following the departure
of the original owner for which WVDEP appropriately issued a fine.
Relevant metrics:
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Metric ID Number and Description
Natl
Goal
Natl
Avg
State
N
State
D
State
Total
10a Timely enforcement taken to address SNC
[GOAL]
80%
80.9%
10
10
100%
10b Appropriate enforcement taken to address
violations [GOAL]
100%
30
32
93.8%
9a Enforcement that returns sites to
100%
28
29
96.6%
compliance [GOAL]
State Response:
RCRA Element 5 - Penalties
Finding 5-1
Meets or Exceeds Expectations
Recurring Issue:
No
Summary:
In all nine files reviewed, WVDEP documented rationale for difference between initial penalty
calculation and final penalty.
Explanation:
Metric 12b) In one instance, WVDEP issued a single penalty action against an owner/operator
responsible for violations alleged at two separate facilities (hospitals) observed during two separate
inspections and resulting in two separate enforcement actions. Following notification by WVDEP
of noncompliance observed, the owner/operator fled the State abandoning its responsibility to
settle its financial obligations and return the violations to compliance. To account for the overlap
in ownership, WVDEP effectively coordinated with the new state-owned organizations and
owner/operators, to return the outstanding violations to compliance. In consideration of WVDEP's
decision, we are applying a "Meets or Exceeds" finding to an adjusted metric percent of 91.7%
(11 of 12) . This adjustment accounts for the consolidation of two files pulled independently during
the file selection process for their incorporation of penalties assessed during the Round 4 review
period.
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Relevant metrics:
Metric ID Number and Description
la Gravity and economic benefit [GOAL]
Natl Natl
Goal Avg
100%
State State State
N D Total
12
92.3%
12a Documentation of rationale for difference
between initial penalty calculation and final
penalty [GOAL]
100%
| 9
9
100%
12b Penalty collection [GOAL]
100%
' 11
12
91.7%
State Response:
45
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