OFFICE OF INSPECTOR GENERAL 

Catalyst for Improving the Environment 

 Evaluation Report 

EPA Needs to Track 

Compliance with Superfund 

Cleanup Requirements 

 Report No. 08-P-0141 

 April 28, 2008 
Report Contributors: Carolyn Copper 

 Jessica Knight

 Steven Weber

 Gerry Snyder 

 Andrew Creath 

Michael Owen 

Abbreviations 

CERCLA Comprehensive Environmental Response, Compensation, and Liability Act 

CERCLIS Comprehensive Environmental Response, Compensation, and Liability 

Information System 

EPA U.S. Environmental Protection Agency 

GAO Government Accountability Office 

NPL National Priorities List 

OECA Office of Enforcement and Compliance Assurance 

OIG Office of Inspector General 

OSWER Office of Solid Waste and Emergency Response 

SNC Substantial Non-Compliance 
U.S. Environmental Protection Agency 08-P-0141 

April 28, 2008 Office of Inspector General 

At a Glance
 

Catalyst for Improving the Environment 

Why We Did This Review 

We conducted this review to 

evaluate whether the U.S. 

Environmental Protection 

Agency (EPA) has resolved 

violations to Superfund 

enforcement instruments 

consistent with its guidance, 

practice, and authorities. 

Background 

The Comprehensive 

Environmental Response, 

Compensation, and Liability 

Act provides EPA with 

multiple enforcement 

authorities to compel 

responsible parties to conduct 

and pay for Superfund 

cleanups. Under its authority, 

EPA can implement 

Superfund enforcement 

instruments to ensure that 

responsible parties address 

environmental contamination 

at Superfund sites. EPA is 

responsible for enforcing the 

terms specified in Superfund 

enforcement instruments, 

including taking action when 

violations occur. 

For further information, 

contact our Office of 

Congressional and Public 

Liaison at (202) 566-2391. 

To view the full report, 

click on the following link: 

www.epa.gov/oig/reports/2008/ 

20080428-08-P-0141.pdf 

EPA Needs to Track Compliance with 

Superfund Cleanup Requirements 

What We Found 

According to EPA’s Superfund information system, there were 3,397 active 

Superfund enforcement instruments to ensure cleanups at National Priorities List 

sites as of September 30, 2007. Yet, EPA does not nationally compile or track 

data on substantial non-compliance (SNC) with the terms or requirements of these 

instruments. Therefore, we were not able to fully determine whether the regions 

have resolved Superfund instrument violations consistent with criteria and 

authorities. In 2000, though, EPA recognized it needed to improve in this area. It 

issued an internal report recommending that the regions improve their data on the 

compliance status of Superfund enforcement instruments and responses to noncompliance. However, EPA has not implemented this recommendation. 

Consequently, the Agency lacks the internal controls necessary to monitor 

compliance with Superfund instruments nationally. 

In a limited review of EPA regions’ enforcement records, we found that two 

regions’ enforcement actions, in 12 instances of SNC, were consistent with EPA 

guidance and authorities. While the regions took appropriate actions to address 

these 12 violations, Region 5 had not established necessary and enforceable 

requirements to address contamination from the Muskego Landfill Site, in 

Waukesha County, Wisconsin. 

What We Recommend 

We recommend that EPA track and monitor substantial non-compliance by using 

and modifying, as appropriate, the existing Superfund information system. We 

also recommend that EPA establish enforceable response actions to address 

contamination from the Muskego Landfill Site. EPA agreed with our 

recommendations and proposed responsive actions to address them. 
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 20460 

OFFICE OF 

INSPECTOR GENERAL 

April 28, 2008 

MEMORANDUM 

SUBJECT:	 EPA Needs to Track Compliance with Superfund Cleanup Requirements 

 Report No. 08-P-0141 

FROM:	 Wade T. Najjum

 Assistant Inspector General 

 Office of Program Evaluation 

TO: Granta Nakayama 

Assistant Administrator 

Office of Enforcement and Compliance Assurance 

Mary Gade 

Region 5 Administrator 

This is our report on the subject evaluation conducted by the Office of Inspector General (OIG) 

of the U.S. Environmental Protection Agency (EPA). This report contains findings that describe 

the problems the OIG has identified and corrective actions the OIG recommends. The OIG 

responded to the Agency’s draft report comments by making changes to the report and providing 

responses to EPA, as appropriate. This report represents the opinion of the OIG and does not 

necessarily represent the final EPA position. Final determinations on matters in this report will 

be made by EPA managers in accordance with established resolution procedures. 

The estimated cost of this report – calculated by multiplying the project’s staff days by the 

applicable daily billing rates in effect at the time – is $326,997. 

Action Required 

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

report within 90 calendar days. Your response should include a corrective action plan for agreed 

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

report to the public. This report will be available at http://www.epa.gov.oig. 
If you or your staff have any questions regarding this report, please contact Carolyn Copper, 

Director for Program Evaluation, Hazardous Waste Issues, at (202) 566-0829 or 

copper.carolyn@epa.gov; or Mike Owen, Project Manager, at (206) 553-2542 or 

owen.michael@epa.gov. 
EPA Needs to Track Compliance with Superfund Cleanup Requirements 

Table of Contents 

Purpose ....................................................................................................................... 1 

Background ................................................................................................................... 1 

Scope and Methodology ............................................................................................... 1 

Noteworthy Achievements ........................................................................................... 2 

EPA Has a Large Universe of Superfund Instruments ............................................... 2 

EPA’s Enforcement Process Provides Flexibility ....................................................... 3 

EPA Does Not Nationally Track Superfund Non-Compliance ................................... 4 

OECA and Region 9 Do Not Track Violations ..................................................... 4
 

Lack of Data Prevents OECA from Determining Compliance .............................. 4
 

Regions’ Responses to Violations Were Consistent

with Agency Enforcement Guidance, Policy, and Authorities................................... 5 

Regions Took Appropriate Actions to Address Violations .................................... 5
 

Region 5 Needs to Improve Enforcement Activities at the 

Muskego Landfill Site ........................................................................................... 5
 

Recommendations ........................................................................................................ 7 

Agency Comments and OIG Evaluation ...................................................................... 8 

Status of Recommendations and Potential Monetary Benefits................................. 9 

Appendices 

A Details on Scope and Methodology..................................................................... 10 

B Agency Response to Draft Report and OIG Evaluation..................................... 12 

C Distribution ............................................................................................................ 20 
Purpose 

We sought to determine whether violations to Superfund instruments have been resolved 

consistent with Agency guidance, practice, and authorities. We addressed the following 

questions: 

1.	 What is the universe of Superfund instruments and how many of these instruments have 

previous or current compliance violations? 

2.	 What are the Agency’s guidance, policy, and authorities for enforcing Superfund 

instruments? 

3.	 How does the Agency track Superfund instrument violations and actions taken to address 

the violations? 

4.	 Have responses to and resolution of violations of Superfund instruments been consistent 

with Agency enforcement guidance, policy, and authorities? 

Background 

In 1980, Congress established the Superfund program under the Comprehensive Environmental 

Response, Compensation, and Liability Act (CERCLA) to clean up the Nation’s worst hazardous 

waste sites. Through CERCLA, EPA has the authority to require that responsible parties conduct 

site cleanups. The highest priority sites are designated as Superfund National Priority List (NPL) 

sites. Responsible parties who agree to clean up Superfund sites can reach settlement 

agreements with EPA. Settlement agreements include specific work requirements for the site. 

They also include provisions for resolving disputes and assessing penalties for non-compliance. 

To document settlements, EPA uses administrative orders on consent or judicial consent decrees. 

EPA also has the authority to issue unilateral administrative orders if the responsible party 

refuses to enter into a settlement or refuses to perform work. 

EPA is responsible for enforcing the terms specified in settlement agreements and unilateral 

administrative orders (Superfund instruments). If a responsible party does not comply with the 

terms of a Superfund instrument, EPA can take actions to bring them into compliance. These 

options typically range from informal negotiations to referrals to Department of Justice. 

EPA’s Office of Enforcement and Compliance Assurance (OECA) is responsible for managing 

the enforcement aspects of the Superfund program. OECA’s responsibilities include developing 

and implementing national Superfund enforcement policy. OECA also provides national 

direction and legal support to EPA’s 10 regional offices. EPA’s regional offices have primary 

responsibility for getting responsible parties to conduct and pay for Superfund cleanups. 

Scope and Methodology 

We conducted this review in accordance with generally accepted government auditing standards. 

Those standards require that we plan and perform the review to obtain sufficient, appropriate 

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

We believe that the evidence obtained provides a reasonable basis for our findings and 

1 
conclusions based upon our objectives. We performed our review from July 2006 to May 2007. 

We evaluated violations meeting an OECA definition for substantial non-compliance (SNC). In 

a 2000 report, OECA defined SNC as a violation that: 

• exacerbates a hazardous substance release or threatened release of a hazardous substance; 

• significantly differs from the terms of the Superfund instrument; 

• represents a pattern of recalcitrance or chronic non-compliance; and/or 

• is deemed substantial by the region for other reasons. 

The Agency does not maintain national data on violations of these Superfund instruments. To 

assess regional responses to compliance violations, we reviewed all instances of SNC identified 

since January 2001 by Regions 5 and 9. We excluded from our review violations related to 

responsible parties’ obligations to pay EPA for Superfund costs. We also excluded violations 

involving Federal facility Superfund sites. 

Appendix A provides further details on our scope and methodology. 

Noteworthy Achievements 

In November 1998, OECA initiated an internal effort to assess responsible party compliance with 

active Superfund instruments. The review evaluated whether responsible parties were meeting 

their Superfund commitments in a timely and satisfactorily manner. The study included 

obtaining and reviewing Superfund instrument information from all 10 EPA regional offices. 

The Agency released its report on the study in September 2000. The study found that 

responsible parties complied with more than 90 percent of active Superfund instruments. The 

report also provided several recommendations to improve enforcing Superfund instruments and 

improve instrument and compliance data. 

EPA Has a Large Universe of Superfund Instruments 

EPA had 3,397 active Superfund instruments establishing cleanup obligations for sites on the 

NPL as of September 30, 2007. We identified the number of active Superfund instruments from 

data provided by the Agency through its Comprehensive Environmental Response, 

Compensation, and Liability Information System (CERCLIS, or Superfund information system).1 

The number of active instruments excludes enforcement instruments for sites not on the NPL and 

instruments involving responsible party payment obligations. As shown in Figure 1, the number 

of active instruments also varies among the regions. 

We were unable to determine, in a comprehensive manner, how many of these Superfund 

instruments have previous or current compliance violations. EPA does not compile or track this 

information. 

1

 The number of instruments may include enforcement instruments that have been completed and fully complied 

with, but have not yet been closed out of CERCLIS. According to an OECA official, OECA is working with the 

regions to close out enforcement actions where all response actions have been completed and all payment 

obligations have been satisfied. 

2 
Figure 1 - Total Number of Active Superfund Instruments for NPL Sites by Region. 

353 

493 

648 

290 

574 

132 

189 231 

285 

202 

0 

100 

200 

300 

400 

500 

600 

700 

Region Region Region Region Region Region Region Region Region Region 

1 2 3 4 5 6 7 8 9 10 

Source: OIG analysis of EPA’s CERCLIS data. 

EPA’s Enforcement Process Provides Flexibility 

Sections 104, 106, 107, and 122 of CERCLA provide EPA legal authority to enforce the cleanup 

of NPL sites and recover cleanup costs from responsible parties. The Agency has the authority 

to: 

•	 Perform cleanups at a site and later recover the costs from responsible parties. 

•	 Enter into settlement agreements with responsible parties to clean up a site or pay for a 

cleanup conducted by EPA. 

•	 Order responsible parties to perform a cleanup at a site, with the option of imposing 

penalties if they fail to comply with the order. 

EPA has established its process for addressing non-compliance with Superfund instruments in 

guidance documents. This includes Guidance on Oversight of Potentially Responsible Party 

Remedial Investigations and Feasibility Studies and the Interim CERCLA Settlement Policy. In 

addition, EPA has summarized processes for addressing non-compliance in the Agency’s 

Superfund enforcement training manual. 

EPA guidance communicates general steps that may be taken to respond to violations. The 

guidance does not establish standard responses by violation type. The guidance also does not 

specify time requirements for addressing and resolving a violation. According to guidance 

documents and OECA managers, the Superfund enforcement process is flexible and depends on 

several factors, including: (1) the responsible party’s compliance history, (2) site conditions, (3) 

duration of non-compliance, and (4) severity of non-compliance. 

The regions have first line responsibility to enforce the requirements and terms in Superfund 

instruments. Regions 5 and 9 assign a remedial project manager and attorney to each NPL site. 

3 
The remedial project manager and site attorney are responsible for ensuring that the responsible 

party complies with the terms of the Superfund instruments. Our review of EPA’s guidance and 

interviews of managers and staff from the two regions disclosed that the regions’ responses to 

violations typically include the following steps: 

•	 Attempt to resolve the dispute informally. 

•	 Issue a formal notice of deficiency. 

•	 For an administrative order on consent or consent decree, invoke formal dispute 

resolution procedures, as outlined in the instrument. 

•	 Take enforcement actions. These actions may include: (a) penalties, (b) EPA takeover of 

site work, and (c) referral to the Department of Justice. 

EPA Does Not Nationally Track Superfund Non-Compliance 

The Agency does not track SNC with Superfund instruments nationally. As a result, EPA does 

not have the data to measure how well, or whether, it is addressing and resolving SNC in the 

Superfund program. This is a weakness in internal controls for assuring compliance with 

Superfund requirements. 

OECA and Region 9 Do Not Track Violations 

Although OECA is responsible for managing Superfund enforcement, it does not track SNC with 

Superfund instruments. The Agency also does not require the regions to track SNC with 

Superfund instruments. However, one of the two regions we reviewed centrally tracks violations 

of these instruments for sites in their region. Region 5 centrally tracks all violations using a 

compliance field in CERCLIS. This field identifies the status of Superfund instruments using 

compliance designations. These designations include: (1) In Compliance, (2) In Violation – No 

Action Planned, (3) In Violation – Action Planned, or (4) In Violation – Action Taken. 

According to a Region 5 manager, the Region uses this field to monitor the compliance status of 

its Superfund instruments. Region 9, however, does not centrally track compliance violations or 

responses to violations. Instead, the remedial project manager responsible for managing the site 

generally tracks each violation and its resolution on a site-specific basis. As a result, Region 9 

has fewer controls to track violations and their resolution than Region 5. 

Lack of Data Prevents OECA from Determining Compliance 

Due to the lack of a national system, OECA has limited information for assessing SNC with 

Superfund instruments. OECA recognized and attempted to address this weakness in an internal 

2000 report. However, EPA did not implement the report’s recommendation that regions 

improve the compliance data they report in CERCLIS, because OECA agreed to alternative 

actions. According to an OECA senior attorney, the regions were opposed to implementing the 

2000 internal report recommendation. The regions agreed, as an alternative, to monitor noncompliance themselves. 

Implementing the recommendation could improve national data and internal controls over 

tracking SNC issues and their resolution. However, to improve the Agency’s visibility over 

4 
violations, OECA will need to restrict using the compliance field in CERCLIS to issues that meet 

OECA’s definition for SNC. Now, the Agency’s definition of non-compliance for this field is 

very general and includes minor violations of Superfund instruments. The Agency should also 

add date fields in CERCLIS to provide data for EPA managers to measure the time taken to 

resolve violations. CERCLIS does not include fields that identify non-compliance and return to 

compliance dates. OECA managers informed us in September 2007 that OECA is working with 

the regions to address this issue. OECA and the regions are working to establish a national 

tracking system for SNC using CERCLIS. They said that OECA was taking this action in 

response to our evaluation work. 

Regions’ Responses to Violations Were Consistent with Agency 

Enforcement Guidance, Policy, and Authorities 

Because no national data exists for instances of Superfund SNC, we could not fully evaluate the 

Agency’s responses to and resolution of SNC with Superfund instruments. However, we found 

that the responses of Regions 5 and 9, addressing 12 instances of SNC, were consistent with 

Agency guidance, policy, and authorities. While these Regions took appropriate enforcement 

actions for these 12 violations, Region 5 had not established enforceable response requirements 

for groundwater contamination migrating from the Muskego Landfill Site. This issue does not 

violate existing Superfund instruments for the site. Rather, it represents a new issue where the 

region has not established a Superfund instrument to address additional contamination from the 

site. 

Regions Took Appropriate Actions to Address Violations 

The 12 instances of SNC occurred at 11 sites in Region 5 and 9 where responsible parties 

generally failed to perform portions of the required work or did not provide adequate site access. 

The responsible parties typically did not comply with the Superfund instruments because they 

either disputed liability or had technical issues with the remedy design. The regions usually tried 

to resolve the issues informally through meetings and letters. If these efforts were not 

successful, the regions issued a formal notice of deficiency. In six of the cases, negotiations 

followed the notices of deficiencies. The regions reached settlements with the responsible 

parties resolving the violations for the six cases. In the more serious cases, the regions invoked 

penalties as part of their enforcement actions. For example, at a site in Region 9, the responsible 

party continually refused to perform the required work even though the Region issued multiple 

notices of deficiency and an additional unilateral administrative order. Because of the multiple 

violations, the Region required the responsible party to pay a penalty of $500,000. The Region 

also required the responsible party to conduct a $1 million supplemental environmental project 

and pay EPA $6.7 million for past costs. 

Region 5 Needs to Improve Enforcement Activities at the Muskego Landfill Site 

Region 5 has not established requirements for the party responsible for cleaning up the Muskego 

Landfill site, in Waukesha County, Wisconsin, to address contaminated groundwater that has 

migrated from the site. As a result, the responsible party has not submitted requested 

information and has made little progress towards addressing the contamination. 

5 
In late 1997 and early 1998, the State of Wisconsin detected contamination from Muskego 

Landfill in several off-site residential wells. According to Region 5 managers and staff, this offsite contamination does not pose an immediate threat to human health. The threat has been 

addressed, they said, because the residences with contaminated wells have been connected to 

municipal water. However, Region 5 staff said that they have not been able to obtain 

documentation from the responsible party verifying that the residences have been provided 

municipal water. According to the staff, the Region has requested this information on multiple 

occasions, but the responsible party has not complied with the requests. Consequently, the 

Region could not, and has not, assured that residences with contaminated wells have been 

provided a potable water source. 

Since at least January 1999, the Region requested, in meetings and with letters, that the 

responsible party investigate the groundwater contamination, but delays have taken years. For 

example, Region 5 requested in a January 1999 letter that the responsible party submit a 

workplan for characterizing the off-site contamination within 30 days. Despite this request and 

subsequent followup activities, the Region was unable to obtain an acceptable workplan from the 

responsible party until August 2005 -- more than 6 years later. Region 5 staff said that the 

responsible party submitted several draft versions of the workplan that the Region found to be 

deficient and they requested revisions. Because of the long delay with completing the workplan, 

the Region did not receive an acceptable groundwater characterization report from the 

responsible party until December 2006. The Region has reviewed the report and is identifying 

sampling requirements necessary to complete a supplemental remedial investigation of the offsite groundwater contamination. Our review of data in the report identified that the groundwater 

contamination has migrated towards a municipal water supply well (Municipal Well #7) and 

several additional residential wells. These wells may be at risk of becoming contaminated in the 

future. 

According to a Region 5 manager and staff, data and funding issues for the site limited the 

Region’s enforcement options that are outlined by EPA guidance. The manager and staff 

thought that the Region did not have enough data on the contamination source to support the case 

for issuing an additional unilateral administrative order to establish response requirements for the 

off-site contamination. The staff also said that the Region did not take over the response because 

it would have been difficult to convince EPA’s Office of Solid Waste and Emergency Response 

(OSWER) to approve funding for the work. The staff explained that the responsible party for the 

site has the ability to pay for the work and OSWER usually reserves funding for sites without 

viable responsible parties that have significant problems. Therefore, the Region did not request 

funding from OSWER. Because of these issues, the Region’s manager and staff felt that 

pursuing negotiations with the responsible party was the best approach for getting the off-site 

contamination cleaned up. The Region began these negotiations with the responsible party in 

1999. 

Region 5’s continuing negotiations with the responsible party has achieved very little progress 

towards addressing the off-site contamination and ensuring that human health and the 

environment are protected. The Region must implement better controls to ensure protection to 

human health and the environment, such as using a Superfund instrument that provides specific 

response actions and milestones to address the off-site contamination issues. 

6 
In September 2007, Region 5’s Superfund Director notified us that the Region was in a much 

stronger position to aggressively enforce compliance, because it has obtained additional data on 

the off-site contamination. The Director also informed us that the Region has developed a plan 

for establishing enforceable response actions and milestones for addressing the off-site 

contamination issues. With regard to contaminated residential wells, the Director informed us 

that the Region has been sampling residential wells over the past few years. The Director also 

disclosed that the Region has recently begun an additional round of sampling to further verify 

and confirm that all residential drinking water wells remain safe to use. The Region’s reported 

actions are needed steps towards verifying contamination in the residential wells near the site. 

However, to fully assure that residents with contaminated wells have safe drinking water, the 

Region will need to verify that these residences have been provided a potable water source. 

Recommendations 

We recommend that the Assistant Administrator for OECA: 

1.	 Request that the regions input compliance status data for Superfund instruments in 

CERCLIS. Limit the CERCLIS input for the “In Violation” designations to issues that 

meet OECA’s definition for SNC. 

2.	 Add data fields in CERCLIS to capture dates when SNC with Superfund instruments was 

identified and resolved. Request that the regions input this data into CERCLIS. 

3.	 Annually review the CERCLIS compliance data to monitor Agency status and progress in 

managing SNC with Superfund instruments. 

4.	 Establish parameters or metrics that indicate an acceptable range of performance or 

circumstances requiring explanation. 

5.	 Monitor Region 5’s progress in establishing an enforceable Superfund instrument for the 

Muskego Landfill Site that provides specific response actions and milestones to address 

the off-site contamination issues. If Region 5 is unable to finalize this Superfund 

instrument, take appropriate actions to ensure that enforceable response actions and 

milestones to address the contamination issues are established. 

We recommend that the Administrator for Region 5: 

6.	 Verify that residences with groundwater wells contaminated from the Muskego Landfill 

Site either have been connected to municipal water or provided with some other potable 

water source. Region 5’s verification should include a review of appropriate sampling 

data to ensure that all residential wells contaminated by the site have been identified. The 

Region should also visit the residences with contaminated wells to confirm that the 

residents have been provided with potable water. 

7 
Agency Comments and OIG Evaluation 

The OIG received comments on the draft report from OECA and Region 5 and we made changes 

to the report where appropriate. Appendix B provides the full text of the Agency’s comments 

and the OIG’s response. 

OECA agreed with all recommendations for their action (Recommendations 1 through 5) and 

described corrective actions that are in process or planned. However, OECA will need to 

provide specific milestones for completing Recommendations 3 and 4 in its response to this 

report. For example, OECA will need to include a specific completion date for establishing a 

baseline for the status of compliance with Superfund enforcement instruments in its response for 

Recommendation 3. OECA will also need to provide a specific completion date for establishing 

a metric for acceptable performance by the Regions in its response for Recommendation 4. 

OECA said in its response that the evaluation and recommendations will enhance its ability to 

track and evaluate compliance with Superfund enforcement instruments on a national basis. 

Until OECA implements corrective actions for Recommendations 1 through 5 they will remain 

open in OIG tracking systems. 

Region 5 agreed with the recommendation for its action (Recommendation 6) and described 

generally responsive corrective actions that are in process or planned. However, Region 5 will 

need to provide details on its corrective actions and a milestone for completing the actions in its 

response to this report. For example, the Region’s response should describe how it has or plans 

to verify that all residences with contaminated wells have been connected to municipal water or 

provided some other potable water source. The Region’s response will also need to include a 

specific date for completing this corrective action. In its response, Region 5 commented that 

EPA is pursuing a new Superfund Administrative Order requiring work to address the off-site 

contamination from the Muskego Landfill Site as suggested by the draft report. Until Region 5 

implements corrective actions for Recommendation 6, it will remain open in OIG tracking 

systems. 

8 
Status of Recommendations and 

Potential Monetary Benefits 

POTENTIAL MONETARY 

RECOMMENDATIONS BENEFITS (in $000s) 

Planned 

Rec. Page Completion Claimed Agreed To 

No. No. Subject Status1 Action Official Date Amount Amount 

1 7 Request that the regions input compliance status O 

data for Superfund instruments in CERCLIS. Limit 

the CERCLIS input for the “In Violation” 

designations to issues that meet OECA’s definition 

for SNC. 

2 7 Add data fields in CERCLIS to capture dates when O 

SNC with Superfund instruments was identified and 

resolved. Request that the regions input this data 

into CERCLIS. 

3 7 Annually review the CERCLIS compliance data to O 

monitor Agency status and progress in managing 

SNC with Superfund instruments. 

4 7 Establish parameters or metrics that indicate an O 

acceptable range of performance or circumstances 

requiring explanation. 

5 7 Monitor Region 5’s progress in establishing an O 

enforceable Superfund instrument for the Muskego 

Landfill Site that provides specific response actions 

and milestones to address the off-site 

contamination issues. If Region 5 is unable to 

finalize this Superfund instrument, take appropriate 

actions to ensure that enforceable response 

actions and milestones to address the 

contamination issues are established. 

6 7 Verify that residences with groundwater wells O 

contaminated from the Muskego Landfill Site either 

have been connected to municipal water or 

provided with some other potable water source. 

Region 5’s verification should include a review of 

appropriate sampling data to ensure that all 

residential wells contaminated by the site have 

been identified. The Region should also visit the 

residences with contaminated wells to confirm that 

the residents have been provided with potable 

water. 

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 

Assistant Administrator 03/31/09 

for OECA 

Assistant Administrator 03/31/09 

for OECA 

Assistant Administrator
 

for OECA 

Assistant Administrator
 

for OECA 

Assistant Administrator 06/30/08 

for OECA 

Administrator for Region 5 

9 

1 
Appendix A 

Details on Scope and Methodology 

We conducted this review in accordance with generally accepted government auditing standards. 

Those standards require that we plan and perform the review to obtain sufficient, appropriate 

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

At the request of an OECA manager, our work was officially suspended from August to October 

2006, to accommodate a heavy workload the regions experienced at the end of the fiscal year. 

Our scope generally covered EPA’s activities for enforcing Superfund instruments from January 

2001 through September 2006. To gain an understanding of EPA’s process for enforcing 

Superfund instruments, we interviewed managers and staff from OSWER, OECA, Region 5, and 

Region 9. We reviewed CERCLA and EPA guidance documents. We also reviewed other 

records applicable to EPA’s enforcement process and activities for Superfund instruments. 

We reviewed CERCLIS information provided by OECA. The CERCLIS data identified the 

universe of active administrative orders on consent, consent decrees, and unilateral 

administrative orders (i.e., Superfund instruments) for work obligations for sites on the NPL as 

of September 30, 2007. The Agency does not maintain national data on violating these 

instruments. Therefore, we were not able to identify the universe of violations for these 

instruments. We conducted limited testing of the Superfund instrument universe to verify the 

accuracy of the data. We compared the site name, Superfund instrument type, and instrument 

dates in CERCLIS with supporting records for 12 sites identified by Regions 5 and 9 with 

compliance issues during the period from January 2001 through September 2006. Our testing 

did not identify any major discrepancies with site names, instrument types, or instrument dates 

between the CERCLIS data and supporting records. 

The Agency does not maintain national data on violations of these instruments. To assess 

regional responses to compliance violations, we reviewed violation information and supporting 

response and resolution records we obtained from Regions 5 and 9. We also interviewed 

remedial project managers and site attorneys from the two Regions. We conducted these 

interviews to gain a complete understanding of the violations and the Regions’ responses 

addressing the violations. We selected these two Regions primarily to provide geographical 

coverage of the central and western United States. These Regions were also selected because 

they had the highest number of Superfund instruments, respective to geographical location. Our 

review focused on SNC with Superfund instruments that were active as of September 30, 2006. 

We reviewed instances of SNC reported to us by Regions 5 and 9. We reviewed all instances of 

SNC identified between January 2001 and September 2006 by Region 5 and 9. We excluded 

from our review violations related to responsible parties’ obligations to pay EPA for Superfund 

costs. We also excluded violations involving Federal facility Superfund sites. For Region 5, we 

evaluated 5 of the 13 reported violations. Eight of the violations reported by Region 5 were 

excluded from review because they involved responsible party payment obligations, were 

incorrectly reported as a violation, involved a Federal facility site, or were overturned by a 

10 
United States court. We evaluated seven out of the nine violations reported by Region 9. Two 

of the violations reported by Region 9 were excluded from review because they involved 

responsible party payment obligation issues. Our evaluation included reviews of relevant site 

documents and Agency correspondence. We also interviewed remedial project managers and 

site attorneys. 

To assess internal controls, we evaluated the Agency’s procedures and records for tracking and 

addressing SNC with Superfund instruments. We found that the Agency needs to implement a 

national tracking system for SNC with Superfund instruments to provide assurance that EPA is 

complying with applicable laws and regulations as communicated in legally binding Superfund 

instruments. 

The Government Accountability Office (GAO) issued a report entitled EPA Should Do More To 

Ensure That Liable Parties Meet Their Cleanup Obligations (GAO-05-658, August 2005). This 

report found that EPA was not aggressively enforcing financial assurance requirements in 

cleanup orders and agreements. The report made multiple recommendations to the Agency to 

improve implementation, management, and enforcement of these requirements. The Agency was 

taking corrective actions in response to this report at the time of our review. As a result, we did 

not conduct follow-up work on GAO’s findings and recommendations. 

11 
Appendix B 

Agency Response to Draft Report and OIG Evaluation 

OECA Response to Draft Report 

MEMORANDUM 

DATE: March 21, 2008 

SUBJECT: Response to “Draft Evaluation Report: EPA Cannot Determine the Extent of 

Substantial Non-Compliance in Superfund Cleanups; Assignment No. 2006- 01400” 

FROM: Catherine R. McCabe /s/ 

Principal Deputy Assistant Administrator 

TO: Carolyn Copper 

 Director for Program Evaluation 

 Hazardous Waste Issues 

Office of Inspector General 

Thank you for the opportunity to comment on the subject draft report on tracking compliance 

with Superfund enforcement instruments. In this memorandum, we will be responding to 

Recommendations 1 through 5. Region 5 will be responding under separate cover to 

Recommendation 6. 

The Office of Enforcement and Compliance Assurance (OECA) believes there was an 

open dialogue on this subject and the evaluation and recommendations will enhance OECA’s 

ability to track and evaluate compliance with Superfund enforcement instruments on a national 

level. We would like your office to reconsider the title of this report because we do not believe it 

accurately reflects the report’s findings. We suggest the report’s title be changed to “EPA Needs 

to Track Compliance with Superfund Enforcement Agreements Nationally.” We are concerned 

that the report title may, in itself, generate unnecessary inquiries, and we would prefer to focus 

on implementing the OIG's recommendations. 

OIG Response 

We changed the report title to EPA Needs to Track Compliance with Superfund Cleanup 

Requirements. 

Before addressing the specific recommendations, I would like to clarify a point made in the 

draft report. In the summary, “At a Glance,” (What We Found), and on pages 2 and 3, “EPA Has a 

Large Universe of Superfund Instruments,” it is noted that “EPA had 3,397 active Superfund 

instruments for cleanup obligations for sites on the NPL as of September 30, 2007.” It should be 

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made clear that this is the number of active Superfund enforcement instruments in CERCLIS and 

does not include enforcement instruments for non-NPL actions nor does it include enforcement 

instruments for cost recovery. That number may also include enforcement instruments that have 

been completed and fully complied with but have not yet been closed out in CERCLIS. We are 

currently working with the Regions to close out enforcement actions where all response actions have 

been completed and all cost recovery obligations satisfied. Once this effort is complete, we will be 

able to determine accurately the total number of active enforcement actions for response (NPL and 

non-NPL) and cost recovery. 

OIG Response 

We revised the statement in the “At a Glance” to read as follows: “According to EPA’s 

Superfund information system, there were 3,397 active Superfund enforcement instruments to ensure 

cleanups at National Priorities List sites as of September 30, 2007.” We also clarified the content of 

universe of Superfund instruments discussed on pages 2 and 3 by adding the following statements: 

“We identified the number of active Superfund instruments from data provided by the Agency 

through its Comprehensive Environmental Response, Compensation, and Liability 

Information System (CERCLIS or Superfund information system). The number of active 

instruments excludes enforcement instruments for sites not on the NPL and instruments 

involving responsible party payment obligations.” The following footnote was also added on 

page 2: “The number of instruments may include enforcement instruments that have been 

completed and fully complied with, but have not yet been closed out of CERCLIS. 

According to an OECA official, OECA is working with the regions to close out enforcement 

actions where all response actions have been completed and all payment obligations have 

been satisfied.” 

With respect to Recommendations 1 through 5, OECA provides the following: 

Recommendation 1 - Request that the regions input compliance status data for Superfund 

[enforcement] instruments in CERCLIS. Limit CERCLIS “In Violation” designations to issues that 

meet OECA’s definition of SNC [Substantial Noncompliance]. 

OECA Response: OECA agrees with this recommendation and has already established two 

workgroups to address this issue. The first is comprised of Regional attorneys, enforcement 

specialists and Remedial Project Managers (RPMs) and has been charged with defining “Substantial 

Noncompliance” (SNC) with respect to Superfund enforcement instruments. In its FY 2000 report, 

EPA established a SNC definition, but it was not fully vetted with the Regions and only addressed 

SNC with respect to enforcement agreements for response actions. The current workgroup will be 

addressing SNC for removal and remedial response actions as well as compliance with cost recovery 

actions. We anticipate that this workgroup will complete its work by the first quarter of FY 2009. 

We will then issue a guidance outlining the SNC definition, the types of actions for which 

compliance monitoring will be required in CERCLIS, and the frequency with which that data should 

be reviewed and updated. This workgroup has already had two conference calls and will convene 

bi-weekly until it completes its tasks. 

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In addition, we have formed a workgroup comprised of Regional CERCLIS Information 

Management Coordinators to identify the system enhancements that will be required to allow 

Regions to track and update compliance information in CERCLIS effectively and efficiently. First, 

the workgroup will identify changes to the current CERCLIS compliance screens that are necessary 

to implement the Inspector General’s recommendations. The workgroup will also identify user 

requirements to make updating the CERCLIS information more efficient. Though the current 

configuration was designed for decentralized data entry directly by RPMs, a number of Regions use 

centralized data entry for compliance tracking, including Region 5, and the current system is 

cumbersome to update. OECA will work with the Regions and OSWER, the owners of the 

CERCLIS data base, to implement these enhancements. The initial enhancements should be 

implemented in the second quarter of FY 2009. Until a full requirements analysis is completed, 

however, we cannot determine a date for completing the second set of CERCLIS changes to enhance 

data entry efficiency. This workgroup has also had two conference calls and will convene bi-weekly 

until it has completed its tasks. 

OIG Response 

OECA’s corrective actions in process meet the intent of our recommendation. The 

recommendation is open with agreed-to actions pending. 

Recommendation 2 - Add data fields in CERCLIS to capture the dates when SNC with Superfund 

[enforcement] instruments was identified and resolved. Request that the regions input this data into 

CERCLIS. 

OECA Response: OECA agrees with this recommendation and will, in modifying CERCLIS, allow 

Regions and Headquarters to identify when there is substantial non-compliance with an enforcement 

action and when the parties returned to compliance. This will be implemented consistent with the 

initial CERCLIS enhancements by the second quarter of FY 2009. 

OIG Response 

OECA’s corrective action in process meets the intent of our recommendation. The 

recommendation is open with agreed-to actions pending. 

Recommendation 3 - Annually review CERCLIS compliance data to monitor Agency status and 

progress in managing SNC with Superfund [enforcement] instruments. 

OECA Response: OECA agrees with this recommendation. Once SNC is defined and initial 

CERCLIS enhancements are in place, we will pull the CERCLIS data to establish a baseline for the 

status of compliance with Superfund enforcement instruments. OECA anticipates this will occur late 

in FY 2009, and we will repeat the evaluation annually thereafter. 

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OIG Response 

OECA’s planned corrective action meets the intent of our recommendation. However, OECA 

will need to provide a more specific milestone date for completing the corrective action in its 

response to the final report. The recommendation is open with agreed-to actions pending. 

Recommendation 4 - Establish parameters or metrics that indicate an acceptable range of 

performance or circumstances requiring explanation. 

OECA Response: OECA agrees with this recommendation. Once we establish a baseline of 

compliance status in FY 2009, we will establish a metric for the range of acceptable performance 

and a threshold for when Regions will be required to substantiate why the SNC threshold was 

exceeded. This would likely be implemented in FY 2010, once a baseline has been established and 

the data evaluated. 

OIG Response 

OECA’s planned corrective action meets the intent of our recommendation. However, OECA 

will need to provide a more specific milestone date for completing the corrective action in its 

response to the final report. The recommendation is open with agreed-to actions pending. 

Recommendation 5 - Monitor Region 5’s progress in establishing an enforceable Superfund 

enforcement instrument for the Muskego Landfill Sites that provides specific response actions to 

address off site contamination. If Region 5 is unable to finalize this Superfund [enforcement] 

instrument, take appropriate actions to ensure that enforceable response action and milestones to 

address the contamination issues are established. 

OECA Response: OECA agrees with this recommendation. It is our understanding that Region 5 

has developed an enforcement instrument that meets the requirements outlined by your office to 

address the off site contamination at the Muskego Landfill Site. We expect that the Regions actions 

will address the OIG’s concerns and will be completed by the end of the 3rd quarter of FY 2008. If 

the Region is unsuccessful, we will work with them to ensure that an enforcement instrument is in 

place as expeditiously as possible. 

OIG Response 

OECA’s planned corrective actions meet the intent of our recommendation. However, OECA 

will need to provide a more specific milestone date for completing the corrective actions in its 

response to the final report. The recommendation is open with agreed-to actions pending. 

Again, we appreciate the opportunity to comment on this draft report. Should you have any 

questions or concerns regarding this response, please contact OECA’s Audit Liaison, Gwendolyn 

Spriggs on 202-564-2439. 

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cc: M. Owen (OIG) 

M. Mulkey (OSRE) 

E. Gilberg (OSRE) 

M. Schneider (OAP) 

G. Spriggs (OAP) 

M. Gade (Region 5) 

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Region 5 Response to Draft Report 

R-19J

 DATE: March 19, 2008 

SUBJECT: U. S. Environmental Protection Agency, Region 5 Response to the Office of Inspector 

General’s Discussion Draft Findings for the Report: “EPA Cannot Determine the Extent 

of Substantial Non-Compliance in Superfund Cleanups” 

FROM: Mary A. Gade /s/ Walter Kovalick for 

Regional Administrator 

TO: Carolyn Copper 

Director for Program Evaluation 

Office of Program Evaluation 

Office of Inspector General 

Thank you for providing the United States Environmental Protection Agency, Region 5 the opportunity to 

comment on the Office of Inspector General’s (OIG’s) Draft Evaluation Report “EPA Cannot Determine 

the Extent of Substantial Non-Compliance in Superfund Cleanups,” Assignment No. 2006-01400, dated 

February 21, 2008. I am responding to issues raised in the report relative to the Muskego Sanitary 

Landfill Site (Site) and, specifically, Recommendation #6. 

Response to Discussion: 

EPA is aware of the issues discussed in the OIG’s draft report and has articulated its concerns about the 

off-site contamination in past Five-Year Review evaluations. EPA will also be amending the Record of 

Decision to modify the required remedial action to ensure that the remedy remains protective of human 

health and the environment. 

OIG Response 

We agree that the Region’s 1999 and 2004 five-year review reports articulated concerns about the 

off-site contamination and included recommendations associated with those concerns. However, as 

discussed in the draft report, the Region had not established requirements for the responsible party 

to address the contaminated groundwater that has migrated from the site at the time of our review. 

The Region’s plan to amend the Record of Decision is a needed step towards establishing a remedy 

for the off-site contamination that provides long-term protection to human health and the 

environment. 

In the past, EPA approached the potentially responsible parties (PRPs) to undertake the additional work 

under the existing 1995 Unilateral Administrative Order (UAO). Those PRPs performed the remedial 

actions required under that UAO to address on-site groundwater contamination. The PRPs denied that 

the additional work was required under the UAO, but agreed to conduct further sampling and 

investigation. Off-site contamination was not identified in the Remedial Investigation/Feasibility Study 

(RI/FS) and was not discovered until after the on-site groundwater remedy was constructed. In addition, 

EPA believed all potentially impacted residents were connected to a public drinking water source. 

In December 2007, EPA received a revised Expanded Groundwater Monitoring Report from the PRPs, 

which included a listing of all private well locations and all municipal drinking water hookups in the study 

area as requested by EPA. With the revised Expanded Groundwater Monitoring Report, EPA has a much 

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better understanding of the contamination plume, the complex hydrogeology in the area, and the potential 

vulnerability of residential and municipal wells in the area. 

EPA is pursuing a new Superfund Administrative Order requiring additional work including specific 

response actions and milestones to address off-site contamination as the OIG’s draft report suggests. 

Specifically, EPA will issue a notice letter inviting the PRPs to negotiate a Consent Order to perform work 

identified in a detailed scope of work. If the PRPs will not enter an agreement within 45 days of receipt of 

the notice letter, EPA will consider other options including, but not limited to, funding the final phase of the 

off-site groundwater investigation. Whether under an enforcement lead or fund-lead action, the final 

necessary sampling will be performed in 2008. EPA will then have a complete supplemental RI for the 

off-site groundwater contamination and will identify and evaluate remedial alternatives for off-site 

groundwater contamination at the Site before the close of 2008. 

OIG Response 

The Region’s recent response actions that are in process and actions planned should assist EPA with 

obtaining a complete remedial investigation of the off-site groundwater contamination. These actions 

should also assist the Region with assuring that a remedy is selected and implemented that provides 

long-term protection to human health and the environment. 

Response to Recommendation #6 

Recommendation #6 stated: 

“Verify that residences with groundwater wells contaminated from the Muskego Landfill Site either have 

been connected to municipal water or provided some other potable water source. The Region’s 

verification should include a review of appropriate sampling data to ensure that all residential wells 

contaminated by the site have been identified. The Region should also visit the residences with 

contaminated wells to confirm that the residents have been provided potable water.” 

EPA’s Response: 

Based upon recent information provided to and developed by EPA, we now have an inventory of all wells 

in the area that are used for potable purposes and that may be vulnerable to contamination. EPA is 

currently verifying all municipal well hook-ups. EPA has also required the PRPs to increase the sampling 

frequency of the municipal and residential wells. Depending on the location and potential vulnerability of 

the well, some wells are sampled more frequently than others (e.g., monthly, quarterly and annually). 

The draft report also correctly notes that contamination has migrated toward Muskego municipal water 

supply well #7. EPA has required the PRPs to monitor that well and wells in its vicinity to make sure that 

well #7 continues to be a safe water supply for the City of Muskego. In addition to monthly sampling of 

well #7 and surrounding monitoring wells, EPA has required additional pumping tests to improve our 

understanding of the local hydrogeology and modeling. This will allow EPA to develop a supplemental 

feasibility study to assure the protection of well #7 and residential wells in the area. 

We believe that our ongoing sampling efforts have assured the safety of all residential wells, and we have 

recently initiated another round of drinking water well sampling to further verify and confirm that all 

residential drinking water wells remain safe for use. If a well is contaminated above safe levels, bottled 

water will be provided by the PRPs. Municipal water lines may also be extended, as they have been in 

the past, until a long-term solution can be found. These actions, along with EPA’s enforcement and 

response strategy, will ensure a solution to these complex problems. Additional remedial investigations 

will support a supplemental Feasibility Study, which will identify and evaluate alternatives to assure longterm protection of any off-site residents and of the municipal well. EPA Region 5 will also keep our Office 

of Site Remediation Enforcement apprised of our progress and timetables. 

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OIG Response 

Region 5’s corrective actions are in process and plan to meet the intent of our recommendation. In its 

response to the final report, the Region will need to provide more specific details describing how it has 

verified or plans to verify that all residences with contaminated wells have been connected to 

municipal water or some other potable water source. The Region will also need to provide a 

milestone, or milestones, for completing the corrective actions. The recommendation is open with 

agreed-to actions pending. 

Again, we appreciate the opportunity to comment on this draft report. If you have any additional 

questions, please feel free to contact Sheri L. Bianchin, Remedial Project Manager, at (312) 886-4745 or 

Thomas Krueger, Associate Regional Counsel, at (312) 886-0562. 

cc: Granta Nakayama, Assistant Administrator, Director, Office of Site Remediation & Enforcement 

Marcia Mulkey, Director, Office of Site Remediation & Enforcement 

Michael Owen, OIG, Region 10 

Jessica Knight, OIG, Region 9 

 Elliot Gilberg, Deputy Director, Office of Site Remediation & Enforcement 

 Patricia Mott, Office of Site Remediation & Enforcement 

 Melissa Gibbons, Office of Site Remediation & Enforcement

 Bruce Pumphrey, Office of Site Remediation & Enforcement 

 Mike Northridge, Office of Site Remediation & Enforcement 

 Eric Levy, Region 5 Audit Coordinator 

 Thomas Krueger, Region 5 

 Larry Kyte, Region 5 

 Leverett Nelson, Region 5 

 Richard C. Karl, Region 5 

 Douglas Ballotti, Region 5 

 Thomas Short, Region 5 

 Donald Bruce, Region 5 

 Jatinder Singh, Region 5 

 Sheri L. Bianchin, Region 5 

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Appendix C 

Distribution 

Office of the Administrator 

Assistant Administrator, Office of Enforcement and Compliance Assurance 

Assistant Administrator, Office of Solid Waste and Emergency Response 

Principal Deputy Assistant Administrator, Office of Enforcement and Compliance Assurance 

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

Director, Office of Regional Operations 

Regional Administrator, Region 5 

Regional Administrator, Region 9 

Office of General Counsel 

Associate Administrator for Congressional and Intergovernmental Relations 

Associate Administrator for Public Affairs 

Agency Followup Official (the CFO) 

Agency Followup Coordinator 

Audit Followup Coordinator, Office of the Administrator 

Audit Followup Coordinator, Office of Enforcement and Compliance Assurance 

Audit Followup Coordinator, Office of Solid Waste and Emergency Response 

Audit Followup Coordinator, Region 5 

Audit Followup Coordinator, Region 9 

Deputy Inspector General 

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