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Region 2's Enforcement of the Resource Conservation and Recovery Act (RCRA)
Region 2's Enforcement of the
Resource Conservation and
Recovery Act (RCRA)
EXECUTIVE SUMMARY
INTRODUCTION
The Resource Conservation and Recovery Act (RCRA) required EPA to develop a framework of hazardous waste regulations. Congress intended that States assume responsibility for implementing RCRA regulations with oversight from EPA. However, EPA still maintained its authority to enforce RCRA regulations particularly when States were unwilling or unable to enforce. Ideally, States and EPA should work in partnership. For the RCRA program to be effective in reducing risks to human health and the environment, it is essential that RCRA violators be identified and quickly returned to compliance.
OBJECTIVES
The objectives of our audit were to determine:
how the lack of RCRA reauthorization impacted Regional enforcement in New Jersey.whether Region 2 issued appropriate enforcement actions and assured timely compliance with enforcement actions in accordance with the 1996 EPA Enforcement Response Policy (ERP).whether Region 2 assured that the Resource Conservation and Recovery Information System (RCRIS) data was timely and accurately entered.RESULTS IN BRIEF
Region 2 generally complied with EPA's Enforcement Response Policy (ERP) by issuing appropriate enforcement actions in New York. However, improvements were needed in assuring that enforcement actions were issued timely and that violators returned to compliance in a timely manner. The Region's limited enforcement authority in New Jersey in some cases deterred the Region from taking appropriate civil and criminal enforcement in that State. Additionally, maintaining a reliable RCRIS data base was an ongoing problem, previously reported in a 1993 OIG audit report.
During our site visit to the New Jersey Department of Environmental Protection (NJDEP), we found that NJDEP generally took timely and appropriate enforcement action as well as assured that violators returned to compliance in accordance with their enforcement documents. NJDEP's RCRIS data was not accurate. However, the Region and NJDEP have addressed this issue.
The following paragraphs summarize our findings:
Delayed NJ RCRA Reauthorization Impacted Region 2's Enforcement Program
New Jersey's new RCRA base program was still not authorized more than two and one half years after New Jersey submitted its initial application. New Jersey's RCRA base program had not been timely reauthorized because Region 2 did not aggressively encourage New Jersey to submit a complete application package. Region 2 allowed NJDEP to delay the application process by not timely elevating action to a higher management level.
As a result, Federal regulations divested EPA of its enforcement authority for certain RCRA base program activities. Enforcement was unnecessarily delayed or not pursued against such violators who illegally shipped hazardous wastes to landfills; improperly stored chemicals near a residential neighborhood; and buried flammable paint and waste solvents on private property. Such violations potentially harmed not only the environment but nearby residents. Specifically, five criminal cases were not pursued by Federal authorities under RCRA. Two cases were referred to the State for prosecution; one may be pursued under a different Federal regulation by Federal authorities; and two other cases may have to be abandoned. At least two civil cases were also affected. Since Region 2 could not take formal enforcement action, one of the cases was eventually referred to the State for action. However, much time was lost during this process. One facility remained in non-compliance for more than 341 days after inspection, while the second facility took 577 days before it finally attained compliance.
In response to our draft report, Region 2 wrote that the Regional Administrator had recently, tentatively approved New Jersey's application for RCRA authorization. The approved program was published for public comment in the Federal Register on May 11, 1999. No public comments were received.
Improvements Needed in Region 2's Implementation of the RCRA Enforcement Program
Region 2 needs to improve its timeliness in issuing enforcement actions and documenting following-up on violators' return to compliance. Our review of 31 judgmentally selected files disclosed that Region 2 did not determine appropriate enforcement action within 90 days or document the justification for the delay as required by the ERP for 7 of 15 sampled New York cases and 2 of 16 sampled New Jersey cases. Also, the Region took longer than the 180 days provided by the ERP to issue formal enforcement actions. Region 2 did not effectively follow up on a facility's return to compliance in 4 of 15 sampled New York cases and 8 of 16 sampled New Jersey cases. As a result, facilities were not returned to compliance as expeditiously as possible. The use of RCRA '3007 Information Request Letters often delayed the Region's ability to determine the appropriate enforcement action to take. Also, the Region did not use a tracking system to assure that actions or followup were conducted in accordance with ERP time frames. As a result RCRA program resources were not being used efficiently to carry out program goals. Also, facilities may not have been treated consistently and violators may have received an unfair economic advantage.
Region 2 Did Not Assure that RCRIS Data Was Timely and Accurately Entered
Region 2 continued to fall short of providing reliable Regional and State RCRIS data. Our review of 31 (judgmentally selected) Regional inspections disclosed untimely or inaccurate RCRIS data for 12 of 16 New Jersey and 13 of 15 New York files reviewed. Additionally, Region 2 did not assure that NJDEP recorded accurate data. Enforcement activity for all 11 State cases reviewed was inaccurately or incompletely entered into RCRIS. These conditions occurred because the Region did not establish adequate procedures or guidelines to assure the timely and accurate entering and reviewing of RCRIS data. Other contributing factors included Regional staff not fully using RCRIS data as a tracking tool, and Inspectors believing the system was not "user friendly". As a result, RCRIS could not provide an accurate picture of Region 2 enforcement activity. Without reliable data, Headquarters could not measure EPA's progress in achieving the Government Performance Results Act goals related to RCRA activities. Also, the public's right to know about EPA and State RCRA enforcement activities was stymied.
During our audit, both Region 2 and the NJDEP started to address the aforementioned RCRIS reporting issues. The Region developed a customized RCRIS report to provide managers with a tracking tool and provide a means for NJDEP to review and correct RCRIS data. The NJDEP immediately corrected errors identified once it received printouts from Region 2. Region 2 continues to monitor RCRIS progress at both the State and Regional level.
RECOMMENDATIONS
To prevent similar reauthorization problems in the future, we recommend that the Regional Administrator instruct Regional staff to develop a process to avoid a lengthy period where EPA's civil and/or criminal enforcement authority would be adversely affected. We recommend establishing time frames for the process, elevating persistent problems to the Regional Administrator, withdrawing State authorization or Federal grant funds as appropriate, and developing expeditious referral procedures for criminal and civil cases during the period EPA does not retain its enforcement authority.
We also recommend that the Regional Administrator instruct the Regional Department of Enforcement and Compliance Assurance (DECA) staff to follow the ERP time frames in determining appropriate enforcement actions and document justification when such time frames are not met; develop procedures or guidelines regarding the use of information request letters; document followup of facilities in non-compliance; and continue the development and implementation of quality control procedures to ensure the reliability and integrity of RCRIS for both Regional and State data.
REGIONAL COMMENTS & OIG EVALUATION
The Assistant Regional Administrator for Policy and Management responded to our draft report on May 6, 1999. The Region did not agree with all our conclusions or recommendations. At the end of each chapter, we added a summarization of the Region's response and our evaluation of their response. See Appendix 1 to read the entire Regional response. An exit conference was held on June 21, 1999.