Jump to main content.


Validation of Air Enforcement Data Reported to EPA by Pennsylvania

CHAPTER 2

PADEP NOT REPORTING SIGNIFICANT VIOLATORS TO EPA

EPA set priorities for its air program and awarded grants to PADEP for more than $5 million a year to carry them out. However, PADEP conducted its air program following an agenda different from EPA's. Specifically, the State did not:

While EPA required information about violators, the State wanted to keep Region 3 uninformed and did not report significant violators to EPA. The reason EPA needed this information was to take action if the State did not enforce federal law. Moreover, while EPA wanted PADEP to take aggressive enforcement action to bring violating facilities into compliance, the State wanted to avoid what it perceived as federal meddling. PADEP believed that it could work with the facility to achieve compliance without labeling the facility as a significant violator.

When PADEP did not notify EPA that violations occurred, Region 3 was unable to ensure the violator achieved compliance timely. In effect, PADEP hindered EPA's ability to oversee the State's enforcement program. These differences contributed to allowing facilities that were serious contributors of air pollution to continue harming the environment -- sometimes for many years.

At the time of our review, there were 2,053 major facilities in Pennsylvania and PADEP inspects most major facilities each year. For example, PADEP performed 2,000 inspections during Fiscal Year 1995, and reported only six significant violators to EPA Region 3.

To identify significant violators, we first reviewed the 556 NOVs that the six PADEP offices submitted to Region 3 during Fiscal Year 1995. We determined that 331 of these NOVs were either issued to minor facilities ineligible for placement on EPA's list of significant violators, or for violations that were not federally enforceable. The remaining 225 NOVs were issued to major facilities that violated state or federal regulations. These were analyzed further to identify any that met EPA's definition of a significant violator.

We also reviewed a sample of 45 PADEP enforcement files and associated inspection reports. These were for facilities that PADEP inspected, and did not submit an NOV to EPA during Fiscal Year 1995, or report the facility as a significant violator. This sample was used to review facilities for which the State did not provide information indicating that the facility was a violator.

In total, we reviewed NOVs or enforcement files for 270 major facilities (225+45). This represents 13 percent of the 2,053 major facilities in Pennsylvania. From these 270 facilities, we identified 64 significant violators that the State did not report to EPA. One of these was a Continuous Emissions Monitoring (CEM) facility, for which the State submitted monitoring data to EPA that indicated the facility was a "potential" significant violator. This is discussed in Chapter 4 under Other Matters.

It is noteworthy that both our review of NOVs and our sample of enforcement files and associated inspections disclosed similar percentages of significant violators. Our review of 225 NOVs, and PADEP files when additional information was necessary, showed that 56, or 25 percent were significant violators that the State did not report. Further, our analysis of the 45 enforcement files disclosed 8 violators or 18 percent, which the State did not report. This second percentage is important because it indicates a review of all 2,053 facilities would have likely yielded more violators over and above the 64 we identified.

We understand that the NOVs PADEP provided EPA contained some information about violators. However, it was a laborious task to review all 556 NOVs to sort out minor facilities not eligible for significant violator status, major facilities with minor violations, and finally the significant violators. Moreover, for a number of the NOVs, we could not determine if the facility was a significant violator from the NOV alone. In many of these cases, we reviewed PADEP's enforcement files including the State's Fiscal Year 1995 inspection reports. For these reasons, we did not consider the NOVs submitted by the State as an adequate alternative to the reporting requirements for significant violators mandated in the 105 grant. Specifically, the State should tell EPA who the significant violators are, and not expect EPA to review almost 600 NOVs that contain a relatively small number of significant violators. The significant violators reported by PADEP offices in Fiscal Year 1995 and those identified by our audit are shown next.

Significant Violators Identified
Regional Office PADEP OIG
Conshohocken 0 14
Wilkes-Barre 0 13
Harrisburg 2 22
Williamsport 0 12
Pittsburgh 1 1
Meadville 3 2
Total 6 64

Clean Air Act Was Violated in Numerous Ways

While the severity of these violations varied, many were threats to the quality of our air. Furthermore, some of these facilities violated the Clean Air Act for years without the State reporting them to EPA. The violations included:

According to EPA's Timely and Appropriate Enforcement Policy, and the grant agreement between EPA and the State, PADEP should have reported to EPA the 64 significant violators we identified. However, PADEP did not believe the violations warranted reporting these facilities to EPA. This practice allowed the State to function without EPA oversight, and to deal with violators as the State saw fit -- not how EPA required. This condition was one reason why many violations persisted for long periods.

PADEP Not Informing EPA Allows Violations to Persist

One facility had seven violations in sixteen months.
For example, PADEP inspections at a facility that manufactures concrete structures identified seven violations during the sixteen months starting May 1993 through September 1994. All of the violations were for fugitive emissions, which are excessive dust particles released into the air. These fugitive emissions were from the following three sources:

These violations took a long time to resolve. The first violation occurred in May 1993 and the final violation occurred in September 1994. Although the facility took corrective action on individual violations, it was not until October 1995, almost two and one half years later, that a PADEP inspection verified that the last violation was resolved. Based on the number of violations and their severity, this was a situation where PADEP should have reported the facility as a significant violator.

PADEP allowed a facility to "pay to pollute" for over one year.
Another facility that manufactured automotive carpet and interior trim had a history of opacity violations during the past four years. Opacity violations occur when the plume of smoke from a stack exceeds an allowable density, indicating that the facility is emitting excess pollution. Here, the source was a boiler.

In August 1995, PADEP assessed this manufacturer a civil penalty of $4,000, but decided not to place the facility on EPA's list of significant violators. Despite the penalty, PADEP allowed the facility to continue operating the faulty boiler and pay a penalty of $500 per month. According to PADEP officials, they allowed this "pay to pollute" arrangement to persist for 14 months, from June 1995 until August 1996, when the facility installed a new boiler.

This example shows there are occasions when PADEP recognizes that a facility is a violator and has taken enforcement action against the facility. However, despite assessing a penalty, PADEP did not consider these violations severe enough to report the facility to EPA as a significant violator.

Others allowed to pollute without penalties.
Since the early 1980's, a facility that manufactured adhesive tape constructed and operated three coating lines without obtaining a permit from PADEP. These coating lines applied VOC solvents that were hot air dried to evaporate excess solvents. Both the coating and drying processes emit VOCs that contribute to ground level ozone, a harmful pollutant.

Operating without a permit was not this facility's only violation qualifying it as a significant violator. One coating line exceeded PADEP's limit for VOC content and had been operating in violation for 13 years, since 1983. A PADEP inspection performed four years ago discussed this violation. However, at the time of our review in April 1996, the violations were not resolved, and the State did not put the facility on the list of significant violators.

Not Reporting Significant Violators Hinders EPA Oversight

Facility "too busy" to correct violation.
The sprayer at a facility that manufactures metal containers was releasing harmful VOCs. These VOCs were released because the facility's incinerator was broken. Operating the sprayer, without the incinerator to remove the VOCs, was a significant violation that the State should have reported to EPA. This situation occurred twice and the State did not notify EPA either time.

PADEP first became aware of the violation in August of 1995, when a citizen complained about offensive odors coming from the facility. PADEP's inspection that month revealed that the facility vented excess pollution directly into the atmosphere. At that time, the owner indicated that the incinerator was malfunctioning for a couple of months and had been turned off. He also indicated the facility did not stop operation because the production line was "too busy."

The State's file indicated that in October 1995, the incinerator was repaired and operating. However, test results showed that its performance was "questionable." In May 1996, a fire damaged the incinerator, and the facility again operated the spray booth without the incinerator for one week. Again, the State should have placed this facility on EPA's significant violator list.

Facilities Constructed Without Permits and Not Reported to EPA

Before a facility installs or modifies equipment, the owner must obtain a construction permit from PADEP. At facilities regulated by the Clean Air Act, two types of equipment require permits. The first and most important permit is for equipment that is a source of air pollution. The second type is for equipment designed to control air pollution.

Eight of the 64 violators we identified, were significant violators because they installed or modified "pollution-creating" equipment without a permit, a more serious offense. These were violations of both state and federal laws that PADEP believed should not be reported to EPA. For example, one facility installed and operated a large boiler without a permit. The boiler emitted nitrogen dioxide that when combined with VOCs, creates harmful ground level ozone. However, PADEP officials said they did not report this facility as a significant violator because they did not believe boilers were environmentally hazardous. State personnel also indicated that as a rule they did not report situations such as these to EPA.

PADEP's Reasons for Not Reporting

In most cases, PADEP personnel did not agree that the facilities we identified were significant violators. State personnel contend:

These reasons have one recurring theme -- a difference of approach between EPA and PADEP on how to enforce the CAA. EPA's Timely and Appropriate Policy requires PADEP to be much more aggressive regarding issues such as: what is considered a significant violator, when the facility should be put on the list, and how long the facility should remain on the list.

We disagree with PADEP that it does not need to report significant violators to EPA. We found that EPA involvement can be beneficial because the State does not always resolve the violations timely. Moreover, EPA personnel believe they can be more objective because they are further removed from the pressures of industry. In any event, the State agreed to report significant violators when it accepted the 105 grant.

EPA Was Generally Aware of PADEP Not Reporting

EPA Region 3 officials stated that in the past, they used NOVs to help identify the more serious violators not reported by PADEP. However, to verify the violation, EPA said they often needed to review PADEP's enforcement file. EPA personnel found this was not always an efficient use of their resources, because these reviews took too much time. Therefore, the Agency has recently focused its enforcement resources on doing inspections to emphasize a "federal presence in the field."

EPA officials said that whenever a state is obviously not reporting significant violators, the Agency still reviews NOVs in selected cases. For example, EPA recognized that PADEP only reported six significant violators in Fiscal Year 1995, although the State performed 2,000 inspections of major facilities. As a result, EPA did a limited review of PADEP's NOVs during the fall of 1995, and found several significant violators that the State did not report.

EPA discovers blatant violator not reported by PADEP.
For example, one NOV reviewed by EPA was for a facility that manufactures packaging materials. Part of the manufacturing process involved printing labels on the package. This is done by printing presses that are a source of VOC contamination. To control the pollution from these presses, PADEP required the facility to install incinerators designed to capture and destroy the pollutants. The State also required that the incinerators operate above a predetermined temperature to be effective. PADEP is supposed to enforce these requirements that are in the facility's permit.

From early 1993 to mid 1994, the facility operated an incinerator below the required temperature on many occasions. This caused the facility to emit excess pollution into the atmosphere. It is also noteworthy that the facility saved money by operating the incinerator at lower temperatures. According to the inspection report that we reviewed, PADEP planned to issue an NOV for this violation. However, we did not find an NOV in the file for operating the incinerator below the specified temperature.

In the summer of 1994, the incinerator exploded, and the facility requested permission from PADEP to operate the printing press without the incinerator. PADEP denied the request and warned the facility of possible penalties associated with this type of violation. In July 1995, PADEP again inspected the facility, and found that the company had been operating the press without the incinerator since November 1994.

The facility's permit allowed a maximum of 4.3 tons of VOCs per year. PADEP reviewed the company's records and found that the facility emitted 33.8 tons of VOC emissions during 1995,more than seven times their allowable amount. In August 1995, PADEP issued an NOV for giving off excess VOCs, and operating the press without the incinerator. Despite receiving the NOV, the facility continued operations without the incinerator until January 1996 when the company moved its plant operations.

This facility violated many permit requirements between 1993 and 1996, which made it apparent that PADEP should have reported this significant violator to EPA. However, PADEP did not report this facility to EPA, even though VOC emissions were seven times the allowable amount.

EPA is Changing to Performance Partnership Grants

Because the Section 105 grants awarded to the states in the past were administered categorically, EPA could hold states accountable for specific performance measures. That is, EPA targeted grant dollars to some of the individual activities recipients agreed to complete. When activities were not completed, EPA could penalize recipients. However, an audit we issued in September 1995 (Audit Report Number E1KAE5-24-0015-5100510) reported that recipients often did not complete required activities under the 105 grants. The audit also showed that EPA rarely withheld grant dollars when activities were not performed. The conditions shown in the prior audit were again illustrated in this report by PADEP's refusal to report significant violators, and EPA's failure to apply sanctions such as withholding grant funds.

In place of categorical grants, EPA plans to award Performance Partnership Grants (PPGs) to the states. These grants will use results-oriented performance measures to avoid excessive "bean counting." EPA will hold states less accountable for specific accomplishments. Instead, the Agency plans to evaluate the grantee on the "bottom line results" of their air program. More emphasis will be placed on environmental outcomes such as how much air quality improved, instead of measuring accomplishments through the number of inspections completed or significant violators reported.

PPGs are intended to develop a partnership between EPA and the states where both parties share the same environmental and program goals. This new working relationship between EPA and the states is intended to focus state and federal efforts on working cooperatively. PPGs are also designed to give states the flexibility to address their most pressing environmental priorities.

PPGs May Not Be Effective

In comparison to EPA, the State placed less emphasis on reporting significant violators. Philosophical differences such as identifying and reporting significant violators show that PADEP and EPA may not be willing partners. They need to mutually resolve differences such as these before PPGs can be effective. The absence of this willing partnership could undermine the effectiveness of PPGs.

EPA considers reporting significant violators important and PADEP needs to fulfill its grant commitment to report them. For these reasons, both parties should consider negotiating to resolve their philosophical differences concerning the reporting of significant violators. This is especially critical if PADEP and EPA are to develop a working relationship and become "performance partners." Until the State and EPA develop the working partnership intended by PPGs, one of the most important performance measures of the air enforcement program should be whether the State is identifying and reporting significant violators.

CONCLUSION

While PADEP identified six significant violators, we identified 64 other facilities that should have been on EPA's list of significant violators during Fiscal Year 1995. This is a considerable difference because we conducted our review at only half of PADEP's regional offices, and reviewed documentation for only 270 of the more than 2,000 major facilities in Pennsylvania.

It appears certain that a more thorough review by us, would have likely identified many more significant violators that the State should have reported. Even the results of our limited review left no doubt that PADEP did not report many significant violators. Moreover, State personnel expressed their intentions not to report significant violators to EPA.

The present arrangement for identifying and reporting significant violators needs improvement. Under the current conditions, EPA cannot help PADEP bring significant violators into compliance, since EPA is often unaware of the violations. Also, EPA cannot adequately perform its oversight role of evaluating the effectiveness of PADEP's enforcement program. Under PPGs, EPA will need to rely more heavily on the completeness and accuracy of the significant violator information provided by PADEP. For PPGs to be effective, PADEP must report significant violators to EPA.

RECOMMENDATIONS

We recommend that the Region 3 Administrator take action to ensure PADEP reports significant violators as required by their Section 105 grant and by EPA's Timely and Appropriate Enforcement Policy. Region 3 could accomplish this by:

  1. Using a performance measure in future PPGs that evaluates whether the State is identifying and reporting significant violators. This practice will require EPA Region 3 to verify the accuracy of information submitted by the State.
  2. Withholding some of Pennsylvania's grant funds in order to achieve the desired results.
  3. Negotiating with PADEP to resolve philosophical differences concerning the reporting of significant violators.
  4. Requiring PADEP to certify it has reported all significant violators to EPA, as defined by EPA's Timely and Appropriate Enforcement Policy.

PADEP RESPONSE

While we believe your draft to be generally misleading and inaccurate, we want to be very clear about one thing. It did not take an audit to determine that PADEP and EPA disagreed on the manner of identifying significant violators (SVs). A review of Region 3's midyear reviews would show this was an issue for the last decade. Although the report criticizes PADEP, it did not criticize EPA for essentially agreeing to PADEP's handling of significant violators for the last decade. At our most recent midyear grant review, in May 1996, EPA Region 3 officials stated that they thought that our enforcement program was very good. They stated that they had no problem with the actions taken or penalties collected.

While EPA does provide a $5 million grant, the amount needs to be put in perspective. It is a small part of the $30 million that Pennsylvania spends on its air program. It is misleading to suggest that the entire $5 million grant is in any material way related to the identification of SVs.

We acknowledge that PADEP does not activate the "SV flag" on the AIRS system. However, that does not mean the data was not entered, or that it could not be used to easily identify SVs. Our personnel can readily identify major sources having violations (the essence of an SV)[emphasis added by OIG] by a search of the EPA database. We assume EPA could do so as well if it chose to. PADEP has not deliberately concealed violations from EPA, but routinely reports more information about violations in paper copy and electronic form than any other state in Region 3. In contrast, EPA has so far withheld the names of the cases involved in this report so that PADEP could not properly evaluate this report.

Selective use of the facts from case files gives readers a distorted, almost preordained view of enforcement actions leading to the conclusion that the report was either done by staff completely unfamiliar with the federal air quality program, or that the report was motivated by something other than a sincere desire to improve the enforcement system. With respect to individual case examples we can identify, the report contains numerous errors, which misidentify major sources that are really minor sources, criticizes PADEP for putting sources on compliance schedules after recommending them, identifies violations where none existed, and stated there were inspection problems with at least one facility that PADEP inspectors actually observed every day. AIRS data also shows that one facility, the report labeled an SV, was inspected by EPA in August 1995 and found to be in compliance. Allegations that PADEP should have reported SVs by telephone are also incorrect. The grant documents seek reporting via AIRS and no other way [emphasis added by OIG].

The disagreement between EPA and PADEP is a dispute over which "flag" is activated in a computer program, not a public health issue. The reason for this decade old disagreement regarding SVs is also obvious without an audit. The reason is EPA's unrealistic definition of an SV and the rigid procedures mandated upon reporting. We do not apologize for disagreeing with a policy, which defines SVs in a manner that defies any common sense understanding of the word "significant."

The definition of a significant violator and the procedures for EPA involvement in SV cases are not derived from the statute or regulations, but rather from EPA guidance. Using its grant money, EPA then seeks to impose its guidance on Pennsylvania. If one followed EPA's guidance, any violation at a major source would make it a significant violator, regardless of its real significance. Once reported to EPA, an SV becomes subject to extensive EPA micro-management.

We do not object to oversight or criticism if warranted. We do object to the second guessing and interference that inevitably follow SV designation. Based on information available to us, it appears that most other states do not identify any more SVs than Pennsylvania. Perhaps this suggests that the place to look for the problems is with the EPA policy, not with the states' reporting.

We find it distressing that the report attempts to undermine the PPG process. PADEP sees PPGs as an opportunity for both agencies to discuss the SV issue openly and constructively. PPGs represent a chance to construct a sensible way of dealing with SVs that will give EPA necessary oversight yet allow the states flexibility.

EPA RESPONSE

We concur with the findings and recommendations expressed in this chapter.

Without consistent, timely, and reliable information on violators, and open communication between state and federal officials regarding appropriate enforcement action, determinations cannot be made on the best course of action to bring violators into compliance. EPA must rely on Pennsylvania for most of our information concerning the compliance status of the State's regulated community. This is the reason for specifying in the Clean Air Act (CAA) Section 105 grant agreement that the State report and identify SVs in accordance with the Timely and Appropriate Enforcement Policy negotiated between the states and EPA.

Despite disagreement over terminology during the past 10 years, the information, when provided was in an easily accessible and plainly identifiable form which promoted prompt review and discussion of the appropriate action to take. Once the State began withholding this information, EPA had no reliable and easily accessible source of data to determine which facilities were significantly violating clean air regulations. State reports to the EPA database -- the Aerometric Information Retrieval System (AIRS) -- did not distinguish between simple violations, with little or no impact on public health, and more egregious violations with serious impacts. CAA Section 105 grant funds specifically require SVs to be identified up front, not buried in a mountain of computer data that would have to be analyzed and verified, resulting in wasted time and taxpayer money. The State agreed to those terms in the contract for receipt of clean air grant funds.

EPA provided a list of the 64 identified violators to the State in an effort to engage officials in a discussion of the status of transactions and future actions. While we have had productive discussions with the State on better data sharing, open communication, and improved understanding of each other's interests in compliance and enforcement policies, the listing of violators and future actions has not been resolved in our discussions.

However, as we have stated repeatedly, State NOVs themselves contain insufficient information to place a facility on the list of national violators. More importantly, they cannot replace the dialogue required and necessary under the Timely and Appropriate Policy and the Section 105 air grant commitments to determine what action to take, and which agency should take the lead.

Regarding Recommendation Number 1, the Office of Enforcement and Compliance Assurance is currently developing national guidance to confirm that even after we have successfully negotiated a PPG agreement, EPA will continue to have a strong need for complete and accurate state supplied compliance data. Region 3 will withhold a portion of Fiscal Year 1997 CAA grant funds until EPA is convinced that Pennsylvania is reporting all known SVs in accordance with the Timely and Appropriate Policy.

Concerning Recommendation Number 3, the fundamental principles of shared responsibilities for enforcement of the CAA are clearly defined in the Agency's Timely and Appropriate Enforcement Policy. This policy is a product of recommendations by a state/federal workgroup. An important aspect of the policy is to ensure that there is consistency among the states and expeditious compliance. We believe that to renegotiate these fundamental principles would create serious discrepancies among the state enforcement programs and undermine the goal of nationwide consistency and protection of the public health and environment. Lastly, we are prepared to work with Pennsylvania to ensure that the implementation of the policy brings definite benefits to the Pennsylvania enforcement program.

OIG EVALUATION

We do not agree with the comments provided by PADEP, and will clarify two portions of EPA's response.

PADEP's comments are contrary to documentation we reviewed and discussions we conducted with State personnel. For example, we did not withhold the names of the facilities we reviewed to hinder PADEP's evaluation of the report. Because EPA Region 3 is responsible to make final determinations concerning the issues in this report, we did not include the names of the facilities reviewed. This was done to protect the privacy of facilities until they were listed by Region 3 as an SV. Moreover, we discussed many of these cases with PADEP personnel during the audit, and they were provided a complete list of violators one working day after we issued the draft report. In any event, PADEP could have obtained this information by calling the contact person provided in the draft report.

We do not agree that our draft report misled the reader by suggesting that the $5 million grant was only for the identification of SVs. In our opinion, the report was clear, the $5 million grant was for the total air program. Our draft report stated that:

Region 3 awards Section 105 grant money so that states can operate their air programs in accordance with their grant agreements.
This issue [reporting SVs] is of such importance that Region 3 allotted part of the Section 105 grant funds for identifying significant violators and reporting them timely.

PADEP's interpretation of EPA's May 1996 midyear grant review was incorrect. Discussions with EPA personnel disclosed that their verbal comments were intended to provide PADEP with some "positives" concerning the enforcement actions taken and penalties collected. However, the PADEP response did not mention the voluminous negative comments and concerns that EPA documented in this midyear review about the State's air enforcement program. EPA's chief concerns were:

. . . over the last couple of years, there has been a decrease in the number of NOVs and penalty actions taken.
. . . Pennsylvania has one of the lowest significant violator reporting rates in Region 3. In fact, during this Fiscal Year PADEP has only voluntarily reported one significant violator.
We also disagree that we did not criticize EPA for inaction when states did not complete grant commitments. In this current report and in the past, we have criticized EPA for not withholding grant funds from PADEP and other state agencies that did not fulfill grant commitments. We believed then and still believe now that grant funds should be withheld when a grantee -- be it a state, non-profit entity, or an educational institution -- does not complete commitments contained in a grant agreement. Page 20 of our report discusses one such past audit that recently criticized EPA for not withholding funds. Additionally, OIG audits have evaluated other aspects of both EPA and state air enforcement programs. Several of these are discussed in the Prior Audit Coverage section of this report.

The grant agreement is in effect a contract. Once the contract is negotiated and executed, the parties are bound contractually, and the contract terms must be fulfilled. When contract terms are not fulfilled, the party that is remiss should be penalized. Grant recipients cannot be allowed to disregard requirements in an executed agreement because they believe portions of the grant to be "rigid," "unrealistic," or "defies any common sense understanding." Reporting SVs in accordance with EPA's Timely and Appropriate Enforcement Policy was a grant or "contract" requirement that the State agreed to perform when it accepted the grant. If the grant requirements were objectionable, PADEP should have refused the grant. Furthermore, EPA paid the State to complete commitments, and should have withheld funds when these were not completed. In our opinion, EPA has been too patient and cooperative.

We disagree with PADEP's contention that this audit was not needed to find out that SV reporting was an issue. Even though past Region 3 reviews discussed the need to report SVs, this audit was necessary to provide conclusive proof that SVs were not being reported, and to learn the extent of the State's non-reporting. Moreover, past EPA practices have been to work cooperatively with the states and to apply sanctions to solve only ". . . persistent, significant performance problems." This provides some reasoning for Region 3's inaction, but does not justify it.

We acknowledge PADEP's affirmation that they do not report SVs as required by the grant. The disagreement between EPA and the PADEP is not about activating a "flag" in a computer program. Region 3 cannot identify SVs from the paper NOVs, electronic information submitted by PADEP, and Quick Look reports. In addition to the reasons already discussed in the report, EPA also could not identify SVs because of inaccuracies in the AIRS. We are not saying this to assess the reasons for the inaccuracies, but only to indicate an additional reason why we disagree with PADEP's contention that EPA can easily identify SVs from AIRS. Additionally, it is unreasonable for EPA personnel -- with other oversight responsibilities -- to continually review the status and inspection results for thousands of facilities in Pennsylvania and the other four states in Region 3. This is especially unreasonable since the grant agreement between EPA and PADEP requires the State to report SVs via AIRS and telephone.

It is also noteworthy that PADEP's response explains that EPA can obtain the essence of an SV. EPA's policy requires more than the essence of an SV. It requires the reporting of an SV.

We disagree with PADEP's response that our report contains many errors and distorted facts. Contrary to the PADEP response, our auditors were knowledgeable about the air program, and our report was not " . . . motivated by something other than a sincere desire to improve the enforcement system." For example, the PADEP response explains that one of our examples was a minor source, not eligible for SV status, that we misidentified as a major source. During our review, we found two inspection reports for this facility -- signed by the PADEP inspector and his supervisor -- that contained the following heading, Semi-annual Inspection Verification Report for Major Facilities. Additionally, PADEP is responsible for determining if a facility is a major or minor source, and had labeled this facility as a major in the AIRS. Also, our determinations concerning when a facility should be labeled an SV were scrutinized by the EPA personnel who make these same determinations in EPA Regions 3 and 5.

Another facility we reviewed had been coded in AIRS by PADEP as a major source during Fiscal Year 1995. Similar to the example above, the inspection report indicated it was a major. During Fiscal Year 1996, the State changed the designation for this facility to a minor. If justified, this change is acceptable, but shows that codings can be changed after the period of our review. In any event, PADEP was responsible for reporting this facility as an SV in Fiscal Year 1995, when it was coded as a major.

We also disagree with PADEP's contention that we reported violations where none existed. We compared the circumstances reported in PADEP inspection reports to EPA's Timely and Appropriate Enforcement Policy and EPA's definition of an SV. PADEP's disagreement with this Policy and the definition of an SV, does not negate the fact that violations occurred. For example, the EPA Policy considers facilities that install equipment without a permit as an SV. Our report disclosed that PADEP does not believe installing boilers without a permit is a reportable violation.

We also do not agree that it is an error to report problems at a facility even though PADEP inspectors observed it every day. Observing a facility without performing an on-site visit is not considered an acceptable compliance assurance method. EPA defines this type of inspection as a Level 0. Additionally, we did not criticize PADEP for putting a facility on a compliance schedule. We reported that PADEP placed the facility on a compliance schedule and assessed penalties for violations, yet did not report these violations to EPA. Additionally, we do not agree that an August 1995 EPA inspection, at a facility we labeled as an SV, found the facility to be in compliance. EPA personnel disclosed that they initiated an unannounced inspection at this facility in August 1995. However, they aborted this inspection because the facility was not in operation, and in the process of moving.

We must also disagree with the PADEP response where it alleges that we erred by indicating that SVs should be reported by telephone. The PADEP response states, "the grant documents seek reporting [of SVs] via AIRS and no other way." This statement is inaccurate because the EPA grant awarded to PADEP required the reporting of SVs in two ways. First, PADEP was required to identify significant violators to EPA via the AIRS. Second, the grant required PADEP to comply with EPA's Timely and Appropriate Enforcement Policy which provides that:

What we find most confusing in PADEP's response is its description of EPA's oversight. The response asserts that:

Despite these comments, the response criticizes our report for undermining the PPG process, which relies on cooperative working relationships between EPA and the states. The PADEP response raises some questions as to whether Pennsylvania is going to be a cooperative partner with EPA under the new Performance Partnership Grants.

Two portions of EPA's response need clarification. EPA's Timely and Appropriate Enforcement Policy and the procedures for identifying SVs were a product of negotiations between the states and EPA. Secondly, we generally agree that NOVs should not be used alone to identify SVs. We agree because there were a number of NOVs we reviewed that indicated the facility was a potential SV. However, because of time constraints we did not review the PADEP files for all of these facilities. Had this been done, it appears likely that we would have identified additional SVs. In any event, regardless of the number of SVs we identified, PADEP should have reported SVs in accordance with the grant agreement.

Go To:
[Table of Contents Icon] Table of Contents [Chapter 3 Icon] Chapter 3

Created February 19, 1997

Top of page

 

Local Navigation

Jump to main content.