U.S. ENVIRONMENTAL PROTECTION AGENCY 

OFFICE OF INSPECTOR GENERAL 

Catalyst for Improving the Environment 

Early Warning Report 

Website for Coal Combustion 

Products Partnership 

Conflicts with Agency Policies 

Report No. 11-P-0002 

 October 13, 2010 
 

 

 

 

 

 

Report Contributors: Carolyn Copper 

 Steve Hanna

 Tapati Bhattacharyya

 Anne Declerck

 Richard Jones

 Chad Kincheloe

 Brooke Shull 

Abbreviations 

C2

P2 Coal Combustion Products Partnership 

CCR Coal Combustion Residual 

EPA U.S. Environmental Protection Agency 

OGC Office of General Counsel 

OIG Office of Inspector General 

ORCR Office of Resource Conservation and Recovery 

OSWER Office of Solid Waste and Emergency Response 
 

U.S. Environmental Protection Agency 11-P-0002 

October 13, 2010 Office of Inspector General 

At a Glance 

Catalyst for Improving the Environment 

Why We Did This Review 

We initiated a review to Partnership Conflicts with Agency Policies 

determine whether the U.S. 

Environmental Protection 

Agency (EPA) followed 

standard practices in 

determining that coal 

combustion residuals (CCRs) 

are safe for the beneficial uses 

EPA has promoted. Our 

review identified issues that 

require immediate action by 

EPA. The results from this 

report will be included in our 

final report on the safe use of 

CCRs. 

Background 

CCRs are generated from 

burning coal. Since 2001, 

EPA has been promoting the 

beneficial use of CCRs 

through the Coal Combustion 

Products Partnership (C2

P2). 

EPA has maintained a public 

C2

P2 Website and has used 

other means to promote the 

beneficial uses of CCRs. On 

May 4, 2010, EPA released a 

proposed rule to regulate 

CCRs. 

For further information, 

contact our Office of 

Congressional, Public Affairs 

and Management at 

(202) 566-2391. 

To view the full report, 

click on the following link: 

www.epa.gov/oig/reports/2011/ 

20101013-11-P-0002.pdf 

Website for Coal Combustion Products 

What We Found 

EPA’s C2

P2 Website presented an incomplete picture regarding actual damage and 

potential risks that can result from large-scale placement of CCRs. In its May 

2010 proposed rule, EPA showed that environmental risks and damage can be 

associated with the large-scale placement of unencapsulated CCRs. According to 

EPA’s proposed rule, unencapsulated use of CCRs may result in environmental 

contamination, such as leaching of heavy metals into drinking water sources. The 

proposed rule identified seven cases involving large-scale placement, under the 

guise of beneficial use, of unencapsulated CCRs, in which damage to human 

health or the environment had been demonstrated. EPA states in its proposed rule 

that it does not consider large-scale placement of CCRs as representing beneficial 

use. However, EPA’s C2

P2 Website, which contained general risk information, 

did not disclose this EPA decision and did not make the seven damage cases 

readily accessible. 

The C2

P2 Website also contained material that gave the appearance that EPA 

endorses commercial products. Such an endorsement is prohibited by EPA ethics 

policies and communications guidelines. We identified 9 of 23 case studies on the 

Website that reference commercial products made with CCRs or patented business 

technologies. All 23 of the studies were marked with EPA’s official logo but none 

had the required disclaimer stating that EPA does not endorse the commercial 

products. 

Although EPA has suspended active participation in C2

P2 during the rulemaking 

process, the C2

P2 Website remained available for public searches, information, and 

education. The C2

P2 Website contained incomplete risk information on the 

beneficial use of CCRs. The C2

P2 Website also contained apparent or implied 

EPA endorsements that are prohibited by EPA policies. 

What We Recommend 

We recommend that EPA remove the C2

P2 Website during the rulemaking 

process. Since our initial communication with EPA on June 23, 2010, EPA has 

removed access to the C2

P2 Website content; however, documents relevant to the 

rulemaking are available in the docket. We further recommend that EPA identify 

why actions prohibited by EPA policies occurred and implement controls to 

establish accountability. EPA agreed and proposed actions to address the 

recommendation. 
 

 

 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 20460 

THE INSPECTOR GENERAL 

October 13, 2010 

MEMORANDUM 

SUBJECT:	 Early Warning Report: 

Website for Coal Combustion Products Partnership 

Conflicts with Agency Policies 

 Report No. 11-P-0002 

FROM:	 Arthur A. Elkins, Jr. 

Inspector General 

TO: Mathy Stanislaus 

 Assistant Administrator 

Office of Solid Waste and Emergency Response 

This early warning report is to inform you of findings by the Office of Inspector General (OIG) 

of the U.S. Environmental Protection Agency (EPA) that require immediate action regarding the 

EPA Office of Resource Conservation and Recovery (ORCR) Coal Combustion Products 

Partnership (C2P2). The purpose of the OIG work was to evaluate whether EPA used standard 

and accepted practices in determining that coal combustion residuals (CCRs) are safe for the 

beneficial uses EPA has promoted. This report presents significant OIG findings identified 

during our ongoing review. 

Scope and Methodology 

We conducted this evaluation in accordance with generally accepted government auditing 

standards. Those standards require that we plan and perform the audit to obtain sufficient, 

appropriate evidence to provide a reasonable basis for our findings and conclusions based on our 

audit objectives. We believe that the evidence obtained provides a reasonable basis for our 

findings and conclusions based on our audit objectives. 

From March through July 2010, we interviewed staff and managers in ORCR, and we reviewed 

relevant EPA policies, coal ash regulatory documents, and the C2

P2 Website content. Additional 

details on our scope and methodology will be included in a separate final report that will discuss 

OIG findings on EPA’s promotion of the beneficial uses of CCRs. 

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11-P-0002 

Background 

CCRs result from the burning of coal and are mainly produced by power plants in the generation 

of electricity. According to industry estimates, approximately 136 million tons of CCRs were 

produced in 2008. Since 1980, CCRs have been exempted from federal hazardous waste 

regulation under the Bevill amendment to the Resource Conservation and Recovery Act. 

Starting in 2001, the EPA ORCR1 has promoted the beneficial use of CCRs through C2P2. 

C2P2 was initiated under EPA’s Resource Conservation Challenge voluntary program, which was 

designed to promote a resource conservation ethic by encouraging the reuse of industrial 

residuals, among other things. The program is sponsored by EPA and other federal agencies and 

includes more than 170 public and private partners. 

EPA has used a public Internet site to promote the beneficial use of CCRs.2 The C2P2 Website 

included information on the types of beneficial use applications, results achieved through C2P2, 

some information about risks and benefits of CCR uses, and case studies about specific uses of 

CCRs. The case studies were submitted by industry and academia, and some include discussions 

of commercial products made using CCRs. 

CCRs have two general categories of beneficial uses. Encapsulated uses include incorporation of 

CCRs into a bound or solid form such as concrete. Unencapsulated uses are not bound in solid 

form, and include road embankments and agricultural uses. 

On December 22, 2008, an estimated 5.4 million cubic yards of coal ash sludge were 

accidentally released from a containment dike at a Kingston, Tennessee, power plant. The ash 

extended over approximately 300 acres of land and generated a surge of water and ash that 

destroyed three homes, disrupted electrical power, ruptured a natural gas line, covered railway 

tracks and roadways, and necessitated the evacuation of a nearby neighborhood. An estimated 

3 million cubic yards of the coal ash entered the Emory River in Tennessee and adjacent 

tributaries. In the aftermath of this catastrophe, EPA initiated a review to determine whether 

coal ash residues should be regulated. On May 4, 2010, EPA released a prepublication version 

of a proposed rule to regulate CCRs for the first time. The proposed rule was published in the 

Federal Register on June 21, 2010. 

The C2P2 Website is Inconsistent with EPA Positions in the 

Proposed CCR Rule 

In the proposed rule, EPA identifies environmental risks and damage associated with large-scale 

placement of CCRs. EPA also states that unencapsulated uses, such as placement on the land in 

road embankments or agricultural uses, “have raised concerns and merit closer attention.” 

However, the C2

P2 Website did not contain risk information consistent with that in EPA’s 

proposed rule. Discussion of the damage cases that have proven environmental or human health 

damage from beneficial uses was also missing from the C2P2 Website. As a result, the Agency’s 

1

 ORCR was formerly known as the Office of Solid Waste. 

2

 Since our June 23, 2010, communication to EPA regarding OIG concerns with the C2P2 Website, EPA has 

removed access to the C2

P2 Website content. 

2 
 

11-P-0002 

C2P2 Website presented an incomplete picture regarding actual damage and potential risks that 

can result from large-scale placement of unencapsulated CCRs and other beneficial uses. 

The proposed rule states: 

	 EPA is seeking comments on potential refinements for certain beneficial uses. 

	 EPA has identified seven damage cases involving large-scale placement, under the 

guise of beneficial use, of CCRs. 

	 EPA considers certain unencapsulated applications, such as fill in sand and gravel pits 

and other large-scale fill applications, as disposal and not beneficial use. EPA states 

that it does not recognize these practices as legitimate beneficial uses. EPA states 

that it has concluded that such practices raise significant environmental concerns. 

These concerns include risks from unsafe levels of CCR contaminants found in 

drinking water sources and in surface water. 

	 EPA has identified concerns with other unencapsulated uses of CCRs, such as the use 

of CCRs in road embankments and agricultural applications in the event proper 

practices are not employed. EPA states that these uses raise issues similar to the 

disposal of CCRs – that without proper protections, contaminants can leach into 

ground water and migrate to drinking water sources, posing significant public health 

concerns. 

	 EPA is considering approaches to better define beneficial use or develop detailed 

beneficial use guidance to supplement the regulations. 

Although it did provide some general precautions on beneficial use, the C2

P2 Website did not 

identify large-scale fill applications as disposal, did not list known beneficial use damage cases, 

and did not emphasize EPA’s concerns about beneficial use of unencapsulated CCRs in road 

embankments and agricultural applications. 

After issuing the proposed rule, EPA added a statement to its C2P2 Website that it has suspended 

active participation in C2P2 during the rulemaking process (Figure 1). However, in its statement, 

EPA neither disclaimed information on the C2P2 Website, nor removed Web content that was 

inconsistent with its current regulatory position as stated in the proposed rule. 

Figure 1: EPA C2P2 Web Statement 

Source: EPA C2P2 Website, http://www.epa.gov/wastes/partnerships/c2p2/index.htm. 

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11-P-0002 

Some C2P2 Web Content is Misleading 

The C2P2 Website stated it contained case studies that “are intended to be illustrations of coal 

combustion product applications that the Agency believes can be beneficial to the environment.” 

The case studies were not produced by EPA, but were submitted by industry and academia. 

However, the case studies lacked EPA disclaimers and contained the EPA logo. EPA policies 

require the use of a disclaimer for articles by non-EPA employees expressing their own opinions. 

EPA policies also prohibit the use of the EPA logo in connection with the promotion of nonGovernment-produced goods or services. Of the 23 case studies that were accessible on the C2

P2 

Website, 7 explicitly referenced commercial products and 2 referenced patented business 

technologies. The absence of EPA endorsement disclaimers and the use of the EPA logo are 

prohibited by EPA policies and imply the endorsement of commercial products by EPA. 

EPA disclaimers 

EPA’s Policy and Implementation Guide for Communications Product Development and 

Approval requires the following disclaimers: 

	 Articles by non-EPA employees expressing their own opinions: “The material in 

this document has been subject to Agency technical and policy review, and approved 

for publication as an EPA report. The views expressed by individual authors, 

however, are their own, and do not necessarily reflect those of the U.S. 

Environmental Protection Agency.” 

	 Documents that refer to specific companies or products: “Mention of trade 

names, products, or services does not convey official EPA approval, endorsement, or 

recommendation.” 

In addition, the EPA Office of General Counsel (OGC) has determined that other disclaimers are 

permissible. OGC specifically recommended the use of the following disclaimer for case studies 

EPA has added to the administrative record for the proposed rulemaking: “Disclaimer of 

Endorsement: Reference herein to any specific commercial products, process or service by trade 

name, trademark, manufacturer, or otherwise, does not necessarily constitute or imply its 

endorsement, recommendation, or favoring by the United States Government.” 

Use of the EPA logo 

	 EPA Administrative Order 1015.2A prohibits use of the logo in connection with the 

promotion of non-Government-produced goods or services. 

	 The EPA Communications Stylebook: Logo Guide states that the EPA logo is the 

signature and label of the Agency and that “[a]n EPA logo says and signifies that 

EPA produced (or co-produced) the material.” 

	 Ethics and EPA logo use: Every EPA employee is bound by the Standards of 

Ethical Conduct for Employees of the Executive Branch, 5 Code of Federal 

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11-P-0002 

Regulations Part 2635, which includes specific prohibitions against misuse of 

position. Misuse of position may be concluded from an inappropriate “appearance of 

governmental [EPA] sanction” and/or inappropriate endorsements. According to 

EPA, employees cannot allow the use of the EPA logo to endorse any nonfederal 

product, service, or enterprise. The only exception is the ENERGY STAR program, 

which has statutory authority to use the EPA logo to endorse commercial products. 

EPA staff stated that they have no record of who applied the logo to the case studies, who 

authorized its use, or who approved the posting of the case studies to the C2

P2 Website. 

Conclusions 

The C2P2 Website did not disclose information about potential risks. Information concerning 

actual environmental damage associated with some unencapsulated uses of CCRs was not readily 

accessible from the C2P2 Website. As a result, the Agency’s C2P2 Website presented to the 

public incomplete information on these issues. EPA appeared to endorse commercial products in 

the C2

P2 case studies through use of the EPA logo and the absence of the required disclaimers. 

This use of the EPA logo is misleading, is prohibited by Agency policy and regulation, and 

demonstrates a lack of management control over the content of the C2

P2 Website. Although 

EPA’s C2

P2 Website stated that EPA has discontinued active participation in C2P2, this 

disclaimer did not prevent the public from accessing and obtaining Agency information that is 

incomplete or misleading and prohibited by Agency policy in some cases. 

Recommendations 

We recommend that the Assistant Administrator for Solid Waste and Emergency Response: 

1. Direct the immediate removal of the C2

P2 Website during the coal ash rulemaking 

process. 

2. Identify the breakdowns in management controls that allowed actions prohibited by EPA 

ethics policies to occur and implement controls to establish accountability. 

Agency Response and OIG Evaluation 

Since our initial communication with EPA on June 23, 2010, EPA has removed access to the 

C2P2 Website content and has made documents relevant to the rulemaking available in the 

docket. Recommendation 1 is complete and will be closed in OIG systems upon report 

issuance. 

The Office of Solid Waste and Emergency Response (OSWER) provided Agency comments. 

We reviewed OSWER’s comments, met with OSWER officials to discuss the comments, and 

made changes to the report, as appropriate. Appendix A provides the full text of OSWER’s 

comments and OIG’s response. 

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11-P-0002 

OSWER agreed that the C2P2 Website did not reflect the extensive discussion of the risks and 

benefits of CCRs in the proposed rule and also might be interpreted as implying EPA 

endorsement of some unencapsulated beneficial uses on which the proposal seeks comment. 

OSWER agreed that management should have exercised better controls to avoid any 

misunderstanding regarding use of the EPA logo and disclaimer according to Agency protocols. 

OSWER stated it takes the issues very seriously and acknowledged that it has already taken or is 

initiating appropriate action. In its comments, OSWER stated that other options to removing the 

C2P2 Website could have included adjusting the content of the Website to be consistent with the 

content of the proposed rule and recommended that the OIG revise its recommendation. At the 

time the OIG made its recommendation, we believed removal of the Website was the most 

efficient action to take and was also consistent with EPA’s self-initiated actions to stop its 

participation in the C2P2 program during the rulemaking process. EPA did not provide 

information to demonstrate that updating the Website to be accurate and complete would be 

more efficient than Website removal. 

OSWER agreed with revised Recommendation 2, and has proposed an acceptable corrective 

actions plan to address it. This recommendation is open with agreed-to actions pending. In its 

90-day response to this report, OSWER should provide estimated or actual milestone completion 

dates for its planned training activities and its review of the process for Website content 

approval. 

In its comments, OSWER requested that our report be revised to recognize that sand and gravel 

and large-scale fill applications are treated by EPA as disposal and not beneficial use. The draft 

report that OSWER reviewed did reflect this position. Specifically, the third bullet on page 3 of 

the OIG’s report states: “EPA considers certain unencapsulated applications, such as fill in sand 

and gravel pits and other large-scale fill applications, as disposal and not beneficial use. EPA 

states [in its proposed 2010 rule] that it does not recognize these practices as legitimate 

beneficial uses.” However, the OIG does not agree with OSWER’s comments that EPA has 

effectively conveyed this position prior to release of its proposed rule (see Appendix A for 

details). 

In accordance with EPA Manual 2750, you are required to provide a written response to this 

report within 90 calendar days. Your response will be posted on the OIG’s public Website, 

along with our comments on your response. Your response should be provided in an Adobe PDF 

file that complies with the accessibility requirements of section 508 of the Rehabilitation Act of 

1973, as amended. Please provide your response to Carolyn Copper at copper.carolyn@epa.gov. 

If your response contains data that you do not want to be released to the public, you should 

identify the data for redaction. You should include a corrective actions plan for agreed-upon 

actions, including milestone dates. We have no objections to the further release of this report to 

the public. 

We will issue a final report that will discuss other OIG findings on whether EPA used accepted 

and standard practices in determining that CCRs are safe for the beneficial uses EPA has 

promoted. If there are questions, please contact Wade Najjum at (202) 566-0832 or 

najjum.wade@epa.gov, or Carolyn Copper at (202) 566-0829 or copper.carolyn@epa.gov. 

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11-P-0002 

Status of Recommendations and 

Potential Monetary Benefits 

POTENTIAL MONETARY 

RECOMMENDATIONS BENEFITS (in $000s) 

Rec. 

No. 

Page 

No. Subject Status1 Action Official 

Planned 

Completion 

Date 

Claimed 

Amount 

Agreed To 

Amount 

1 

2 

5 

5 

Direct the immediate removal of the C2P2 Website 

during the coal ash rulemaking process. 

Identify the breakdowns in management controls 

that allowed actions prohibited by EPA ethics 

policies to occur and implement controls to 

establish accountability. 

C 

O 

Assistant Administrator for 

Solid Waste and Emergency 

Response 

Assistant Administrator for 

Solid Waste and Emergency 

Response 

07/02/10 

O = recommendation is open with agreed-to corrective actions pending 

C = recommendation is closed with all agreed-to actions completed 

U = recommendation is undecided with resolution efforts in progress 

7 

1 
 

 

11-P-0002 

Appendix A 

OSWER Comments on OIG Draft Report 

and OIG Response 

August 17, 2010 

MEMORANDUM 

SUBJECT: Response to Draft Early Warning Report: Website for Coal Combustion Products 

Partnership Conflicts with Agency Policies; Project No. OPE-FY10-0007 

FROM: Mathy Stanislaus/s/ 

 Assistant Administrator 

TO: Arthur A. Elkins, Jr. 

 Inspector General 

The Office of Solid Waste and Emergency Response (OSWER) reviewed the Office of Inspector 

General’s (OIG) subject report and its recommendations. The purpose of this memorandum is to 

transmit our response to those recommendations and to address other significant issues raised in 

the report. The response is in two parts: first we address significant issues raised in the report, 

and second, we respond to the OIG’s specific recommendations. 

OIG FINDINGS 

The OIG finds that EPA’s Coal Combustion Products Partnership (C2P2) Website is inconsistent 

with the coal combustion residual (CCR) proposed rule because it does not identify large-scale 

fill applications as disposal, does not list known beneficial use damage cases, and does not 

emphasize EPA’s concerns about beneficial use of unencapsulated CCRs in road embankments 

and agricultural applications. 

OIG Response: This is an accurate representation of one of the OIG’s findings. We also find 

that EPA appeared to endorse commercial products in the C2

P2 case studies through the improper 

use of the EPA logo and the absence of the required disclaimers. 

As a general matter, OSWER agrees that the C2P2 Website was not fully in line with the 

proposed rule. The preamble to the proposed rule presents an extensive discussion of beneficial 

uses of CCRs. This discussion describes the full array of encapsulated and unencapsulated 

beneficial uses. It notes that EPA has some concerns about unencapsulated beneficial uses and 

seeks comment on these uses so that the Agency can make a more informed judgment about their 

safety in the final rule. The preamble also notes that EPA believes that certain fill applications of 

CCRs in fact represent disposal and references damage cases for these applications. 

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11-P-0002 

The C2P2 Website did not reflect the extensive discussion of the risks and benefits of CCRs in 

the proposal and also might be interpreted as implying EPA endorsement of some 

unencapsulated beneficial uses on which the proposal seeks comment. In this respect, the 

Website presented an incomplete picture of the Agency’s current technical thinking on the safety 

of CCR beneficial uses. We believe that we addressed this concern at the time of the CCR 

proposal by suspending active EPA participation in the C2P2 partnership. However, our recent 

decision to terminate access to the Website should fully address the potential for confusion and 

misinformation resulting from inconsistencies between the Website and proposed rule. 

Nonetheless, the OIG report should be more precisely worded to differentiate between 

unencapsulated beneficial uses and fill applications which EPA considers disposal. The May 

2000 Regulatory Determination expressly recognized damage cases associated with sand and 

gravel pits as landfill damage cases and thus involving disposal and not beneficial use. 

Therefore, OSWER did not believe extensive discussion of the damage cases on the C2P2 

Website, which was devoted to beneficial use, to be appropriate or necessary. Linking these 

damage cases to unencapsulated CCR beneficial uses is inappropriate and misleading because 

the proposed rule cites no damage cases for these uses, nor do the sand and gravel pit damage 

cases provide such technical support. Moreover, the C2P2 Website did inform visitors to the site 

that the damage cases were associated with disposal (not beneficial use). A link to the damage 

cases was provided on the C2P2 Website with the following text to make it clear that the damage 

cases were associated with disposal: 

The Fossil Fuel Combustion Waste page has information on damage cases relating to the 

placement of CCPs.3 

Therefore, the OIG report should be revised to recognize that sand and gravel and large scale fill 

applications are treated by EPA as disposal and not beneficial use. Further, the report should 

make clear that EPA has no basis to imply that the damage cases regarding sand and gravel pits 

and large scale fill applications are in any way connected to unencapsulated beneficial uses and 

that, while the proposed rule raises some concerns about these uses, these concerns are not based 

on the damage cases. 

OIG Response: We acknowledge OSWER’s concurrence with OIG findings. OSWER has 

recognized that its C2

P2 Website contained an incomplete characterization of risks as well as 

information that gives the appearance of a government endorsement of commercial products, 

which is prohibited by Agency policy. OSWER has acted on, or developed plans to act on, the 

OIG’s recommendation to address these problems. 

OSWER makes comments regarding how it has treated the placement of CCRs in sand and 

gravel pits and fill applications. OSWER’s comments attempt to demonstrate that EPA has 

clearly and consistently communicated its position that the use of CCRs in sand and gravel pits is 

disposal and not beneficial use and, therefore, any damage cases associated with sand and gravel 

pits cannot be considered beneficial use damage cases. OSWER’s comments also attempt to 

demonstrate that the OIG has erroneously stated, or implied, that sand and gravel pits and largescale fill operations have been strictly treated by EPA as beneficial use. To support its positions, 

OSWER cited information contained in the May 2000 Regulatory Determination and a statement 

3

 The abbreviation CCPs stands for coal combustion products; CCPs and CCRs are sometimes used interchangeably. 

9 
 

 

11-P-0002 

on the former C2P2 Website: “The Fossil Fuel Combustion Waste page has information on 

damage cases relating to the placement of CCPs.” 

The OIG cannot substantiate OSWER’s statement, “The May 2000 Regulatory Determination 

expressly recognized damage cases associated with sand and gravel pits as landfill damage cases 

and thus involving disposal and not beneficial use.” The OIG could find no references to ‘sand 

and gravel pits’ in the May 2000 Regulatory Determination. Moreover, we do not agree that a 

2000 reference to landfill damage cases conveys the Agency’s position on appropriate beneficial 

uses of CCRs, given that the Agency expressly used its more current C2P2 Website for that 

purpose. We do not agree that the statement – “The Fossil Fuel Combustion Waste page has 

information on damage cases relating to the placement of CCPs” – which appeared on EPA’s 

C2P2 Website, effectively conveys an Agency position that it considers sand and gravel pits and 

large-scale fill applications as disposal and not beneficial use. Therefore, we do not agree with a 

conclusion that, in the past, EPA has consistently and clearly communicated that it considers 

sand and gravel pits and large-scale fill applications as disposal and not beneficial use. 

The OIG’s report shows that EPA has taken a clear position in its 2010 proposed rule that it 

considers certain unencapsulated applications, such as fill in sand and gravel pits and other largescale fill applications, as disposal and not beneficial use. Specifically, the third bullet on page 3 

of the OIG’s report states, “EPA considers certain unencapsulated applications, such as fill in 

sand and gravel pits and other large-scale fill applications, as disposal and not beneficial use. 

EPA states [in its proposed 2010 rule] that it does not recognize these practices as legitimate 

beneficial uses.” However, EPA did not effectively communicate or convey this position on the 

C2P2 Website or in the May 2000 regulatory determination as described in OSWER’s comments. 

The second major finding of the OIG involves concerns about case studies that were placed on 

the Website – the case studies posted on the EPA Website, displayed the EPA logo, lacked 

disclaimers, and thus improperly implied Agency endorsement of the products or companies. 

OSWER agrees with the OIG findings that the case studies should have included disclaimers to 

underscore that EPA was not endorsing the products or uses involved. In adding some of the 

case studies to the administrative record for the rulemaking, we have removed the EPA logo and 

inserted disclaimer language. However, by quoting specific disclaimer language, we believe the 

report could erroneously suggest that the EPA regulations (5 CFR 2635) mandate a single 

formulation of the disclaimer. In actual fact, the Office of General Counsel (OGC) has approved 

use of other disclaimers and has specifically recommended use of the following disclaimer for 

the case studies from the Website that we are adding to the administrative record for the 

proposed rule: “Disclaimer of Endorsement: Reference herein to any specific commercial 

products, process or service by trade name, trademark, manufacturer, or otherwise, does not 

necessarily constitute or imply its endorsement, recommendation, or favoring by the United 

States Government.” Therefore, we recommend revising the report to recognize that different 

types of disclaimer wording are permissible and citing the disclaimer language the Agency is 

using for the CCR rulemaking. 

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11-P-0002 

OIG Response: The OIG acknowledges OSWER’s concurrence with the finding that Agency 

endorsement of commercial products is implied through improper use of the EPA logo and lack 

of disclaimers. The report has been modified to state OSWER’s position that OGC has 

determined that other disclaimers are permissible. To the extent that EPA is modifying its 

practices or language regarding disclaimers, it should also evaluate the need to formally update 

Agency directives or policies on these matters for transparency and staff awareness. 

RESPONSE TO RECOMMENDATIONS 

OIG Recommendation #1 

Direct the immediate removal of the C2P2 Website until the Agency makes its final policy and 

regulatory determinations regarding beneficial use of all forms of CCRs. 

COMPLETED. 

OSWER Response: As the OIG notes in its report, OSWER has removed the C2P2 Website 

while the program is being re-evaluated during the rulemaking process, and thus OSWER has 

effectively implemented the OIG recommendation. Some relevant documents that form part of 

the technical support for the rulemaking have been placed in the rulemaking docket and are 

publicly available. The EPA logo was removed from all case study documents and appropriate 

disclaimers were included on the case studies before they were placed in the docket. 

Procedurally, however, OSWER believes the OIG recommendation would be more appropriate if 

broadened to allow for other options. The OIG findings were of inconsistencies between the 

C2P2 Website and the proposal, which could be remedied in several ways, including removing 

the Website, or adjusting the content of the Website to be consistent with the content of the 

proposed rule. Therefore, OSWER recommends that the OIG recommendation be revised to 

encompass both options, and that it is appropriately within OSWER’s discretion to respond to 

the findings by considering both approaches. 

OIG Response: The OIG acknowledges OSWER’s implementation of Recommendation 1. 

This recommendation will be closed upon report issuance. The OIG does not believe further 

modifications to the recommendation are needed. OSWER maintains its discretion and authority 

to modify future information that appears on the Website. The OIG recognizes that OSWER 

may have new or modified content related to beneficial uses of CCRs to place on a Website or 

have information to make available in the docket. In our opinion, an appropriate and efficient 

action to take during the rulemaking process is to remove (or block) the Website content, 

particularly the incomplete or misleading information. In our opinion, blocking all Website 

content is similar to actions EPA initiated itself to stop its participation in the C2

P2 program 

during the rulemaking. Because this recommendation will be closed upon report issuance, 

OSWER is not required to provide any additional information for this recommendation in its 90-

day response to this report. 

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11-P-0002 

OIG Recommendation #2 

Identify the breakdowns in management controls that allowed the violation of EPA standards and 

ethics policies, and implement controls to establish accountability. If staff person(s) responsible 

for these violations can be identified, EPA should take appropriate administrative actions based 

on the degree to which the violations of Agency policies were intentional. 

OSWER Response: OSWER agrees that management should have exercised better controls to 

avoid any misunderstanding regarding use of the EPA logo and disclaimer according to Agency 

protocols. As a result, OSWER will provide training to the Office of Resource Conservation and 

Recovery’s (ORCR) management team on the EPA standards and policies associated with the 

use of the EPA logo and endorsement issues. 

OSWER agrees that policies and procedures were not followed. However, OSWER disagrees 

with the use of the word “violation” as found in this OIG recommendation because OSWER is 

not aware that any formal legal determination has been made. OSWER recommends the term 

“violation” be revised to reflect that policies and procedures were not followed. 

Additionally, ORCR is reviewing its process for Website content approval to strengthen 

management’s role. However, as noted in the OIG report, OSWER has not been able to identify 

a responsible person or persons given the date when these documents originally began being 

posted (i.e., 2003). 

OIG Response: The OIG acknowledges OSWER’s agreement with Recommendation 2, that 

better management controls should be applied to avoid improper use of the EPA logo and ensure 

proper use of Agency disclaimers. OSWER’s proposed corrective actions plan to provide 

training to the ORCR management team on the EPA standards and policies associated with the 

use of the EPA logo and endorsement issues, and to review its process for Website content 

approval to strengthen management’s role, is acceptable. This recommendation is open with 

agreed-to actions pending. In its 90-day response to this report, OSWER should provide 

estimated or actual milestone completion dates for its planned training activities and its review of 

the process for Website content approval. Where applicable, the OIG has modified its use of the 

word ”violation” with Agency standards or policies to reflect that prohibited actions or actions 

that do not conform to Agency policy occurred. The OIG also acknowledges that OSWER has 

been unable to determine the person(s) responsible for improper use of the EPA logo and has 

modified the final report recommendation. 

In conclusion, OSWER appreciates the opportunity to review this OIG Draft Early Warning 

Report. OSWER clearly takes the issues very seriously and, as stated above, has already taken 

or is initiating appropriate action. 

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11-P-0002 

Appendix B 

Distribution 

Office of the Administrator 

Assistant Administrator for Solid Waste and Emergency Response 

Principal Deputy Assistant Administrator, Office of Solid Waste and Emergency Response 

Agency Follow-up Official (the CFO) 

Agency Follow-up Coordinator 

General Counsel 

Associate Administrator for Congressional and Intergovernmental Relations 

Associate Administrator for External Affairs and Environmental Education 

Acting Director, Office of Resource Conservation and Recovery, Office of Solid Waste and 

Emergency Response 

Acting Deputy Director, Office of Resource Conservation and Recovery, Office of Solid Waste 

and Emergency Response 

Director, Resource Conservation and Sustainability Division, Office of Resource Conservation 

and Recovery, Office of Solid Waste and Emergency Response 

Audit Follow-up Coordinator, Office of Solid Waste and Emergency Response 

Inspector General 

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