Validation of Air Enforcement Data Reported to 

EPA by Pennsylvania

APPENDIX A 

PADEP'S RESPONSE TO THE DRAFT REPORT

Pennsylvania Department of Environmental Protection 

Rachel Carson State Office Building

P.O. Box 2063

Harrisburg, PA 17105-2063

December 13 1996 

The Secretary 717-787-281

Mr. P. Ronald Gandolfo 

Divisional Inspector General For Audit 

Office of the Inspector General 

Mid-Atlantic Division 

U.S. Environmental Protection Agency 

841 Chestnut Building 

Philadelphia, PA 19107-4431 

Dear Ron: 

The Pennsylvania Department of Environmental Protection (DEP) welcomes this opportunity to comment upon 

the "Draft Report of Audit on EPA Region III's Oversight of Pennsylvanian's Air Enforcement Data" (Report) 

dated November 15, 1996. 

Let me first say that DEP is committed to administering our air quality program in a professional manner that 

protects the health and rights of our citizens. We have taken the public charges EPA made based on this draft 

Report seriously and have asked our Citizens Advisory Council to undertake an independent review of our 

violation reporting system and of the allegations in the draft Report. If legitimate problems are identified in the 

final audit we will take the steps necessary to correct them. 

The unprofessional handling of a preliminary draft version of the Report, however, is still of great concen to us. 

It is extremely unfortunate that we did not have the opportunity to review and comment on the preliminary 

Report before it was leaked to the press and commented upon extensively and provocatively by EPA officials. 

We find it extremely ironic that the draft copy provided to us for review contains two warnings not to distribute 

or disclose its contents. 

To our knowledge no one in your office, or elsewhere at EPA, has made any effort to locate the source of the 

leak or otherwise deal with the highly irregular way this document has been used. The failure of EPA Regional 

officials or the Inspector General to investigate simply reinforces the overall impression that this is not a 

professionally conducted audit, but a thinly disguised attempt to further a personal or political agenda of the 

agency or its officials. 

On the draft Report itself, we have five major areas of comment: 
1. No audit was needed to find out that significant violators reporting is an issue, but it has been an issue 

between Pennsylvania and EPA for the last ten years. This is not a public health issue; it is about 

whether a "flag" is raised in a computer system. Although the Report liberally criticizes DEP, we note 

the Report does not criticize EPA Region III for essentially agreeing to DEP's handling of significant 

violators for the last decade.

2. DEP has not deliberately concealed violations from EPA, but in fact routinely reports more information 

about more violations in paper copy and electronic form than any other state i Region III. DEP staff 

would be happy to show the EPA staff conducting the audit how EPA's electronic database works so 

they can retrieve this information in the future. In contrast, EPA has so far withheld the names of the 

cases involved in this audit so that DEP could not do a proper evaluation of this report.\

3. EPA has been fully aware of Pennsylvania's significant and insignificant enforcement cases for the last 

ten years and could have, at any time, requested DEP or EPA actions to handle cases differently. 

Ironically, many cases have in fact been handled this way in the past successfull .

4. Selective use of facts from case files gives readers a distorted, almost preordained view of enforcement 

actions leading to the conclusion that the Report was either done by staff completely unfamiliar with the 

federal air quality program or that the Report was motivated by something other than a sincere desire to 

improve the enforcement system.

5. With respect to individual case examples we were able to identify, the Report contains numerous errors 

which misidentify major sources that are really minor sources, criticizes DEP for putting sources on 

compliance schedules after recommending them, identifies violations where none existed and stated 

there were inspection problems with at least one facility that DEP inspectors actually observed every 

day.

General Comments

Identifying, significant violators is not a new issue. While we believe your draft Report to be generally 

misleading and inaccurate, we want to be very clear about one thing. It did not take an audit to determine that 

Pennsylvania and EPA have disagreed on the manner of identifying significant violators (SVs). A simple review 

of Region III's mid-year grant review documents would show this to have been an issue for the last decade. 

Contrary to EPA's attempts to do otherwise, this is not a problem which can be laid at the feet of the Ridge 

administration. It has existed unchanged through several administrations. For example, in the fiscal year 1992 

mid-year review, EPA stated "DER has acknowledged their previous track record of not identifying Significant 

Violators to EPA." This is not a new issue. 

DEP does not deliberately conceal violations from EPA. We want to be equally clear on a second point. DEP 

has not intentionally concealed any violations from EPA and has routinely reported violations. The draft Report 

is simply wrong when it states, in several places, that a violation was not reported to EPA. The Report all but 

ignores the Aerometric Information Management System (AIRS) database which is maintained by EPA and on 

which DEP reports violations. We acknowledge that DEP does not and has not activated the "SV flag" on the 

AIR system. However, that does not mean the data was not entered or that it could not be used to easil identify 

SVs. 

Our personnel can readily identify major sources having violations (the essence of an SV) by a search of the 

EPA database. We assume EPA could do so as well if it chose to. Allegations that EPA must search through 

Notices of Violations (NOVs) provided in Monthly Reports to find SVs is disingenuous at best. DEP provides 

the monthly reports as extra information which can be checked against the AIRS data. If EPA officials are 

searching through paper copies of NOVs rather than using EPA's own database they are wasting a lot of 

taxpayer money maintaining the AIRS database. 
EPA's Sv guidance is unrealistic. The reason for this decade old disagreement regarding significant violators is 

also obvious without an audit. That reason, as stated repeatedly by the former DER, is EPA's unrealistic 

definition of a significant violator and the rigid procedures mandated upon reporting. We do not apologize for 

continuing to disagree with a policy which defines SVs in a manner which defies commonsense understanding 

of the word "significant." 

The definition of a significant violator and the procedures for EPA involvement in SV cases are not derived 

from the statute or regulations, but rather from EPA guidance. Using its grant money, EPA then seeks to impose 

its guidance on Pennsylvania. 

If one followed EPA's guidance, any violation at a major source would make it a significant violator, regardless 

of its real significance. Once reported to EPA, an SV case becomes subject to extensive EPA micromanagement. 

We do not object to oversight or criticism if warranted. We do object to the second guessing and interference 

which inevitably follows SV designation. Based on information available to us, it appears that most other states 

do not identify any more SVs than Pennsylvania. Perhaps this sugests that the place to look for problems is with 

the EPA policy, not with the states' reporting. 

We find it curious that your Report is entitled "Draft Report of Audit on EPA Region III's Oversight of 

Pennsylvania's Air Enforcement Data" because there is no mention of EPA's decade of acquiescence in 

Pennsylvania's handling of significant violations. We say this not to criticize Region III, which we feel handled 

the matter correctly in the past, but to point out the alternate agenda behind your Report. The revisionist history 

in the Report suggested EPA has "stressed" this issue over the years. Actually, EPA has raised the issue each 

year and DER/DEP has stated it opposition to the process. The parties then moved forward to work 

cooperatively. 

For example, in documents prepared by EPA for the fiscal year 1991 mid-year review EPA state "DER does not 

identify sources as Significant Violators; however, it does submit the necessary information for EPA to 

determine Significant Violators." DEP reports the same information today as it did then and actually makes 

better use of AIRS than it did in 1991. It was not until fiscal year 1996, after it was widely known at Region III 

that your Report raised this issue that Region III officials became strident about it. 

Specific Comments

We tum now to some of the specific statements in the Report. 

The "Background" section (page 1) attempts to sensationalize this issue by citing largely irrelevant statistics 

about air toxics and incorrectly suggesting that ozone is an air toxic. This is a dispute over which "flag" is 

activated in a computcr program, not a real public health issue; an assertion that is backed by examples given in 

the audit. 

While EPA does provide a $5 million grant (page 2), that amount needs to be put in perspective. It is a small 

part of the $30 million Pennsylvania spends on its air program. As you note, EPA's grant is for all aspects of the 

program, not just enforcement. Identifying SVs has never had a specific dollar amount attached to it by EPA. In 

the past, when EPA did suggest that Pennsylvania could receive money from a "bonus pool" if SVs were 

handled EPA's way, the amounts suggested were less than $50,000. It is misleading to suggest that the entire $5 

million grant is in any material way related to the identification of SVs. 

Allegations that SVs were to be reported by telephone is a new addition since the leaked version of the Report 

(page 5). However, it is incorrect. The grant documents seek reporting "... via the AIRS Facility Subsystem" and

no other way. While DEP and EPA do conduct periodic conference calls regarding cases and new 
developments, reporting is specifically required via AIRS. The Report neglects to mention that after Region III 

complained it was too much trouble to contact each of DEP's six regional offices to get first-hand enforcement 

information, DEP re-centralized the conference call process in 1995 to help EPA. Prior to this change, calls 

from EPA to some DEP regional offices were infrequent. To assist EPA, DEP central office initiated regular 

quarterly calls with EPA and ensured the appropriate regional staff were also on the call DEP made this effort 

even though the grant documents put this responsibility on EPA. 

We reject your unsupported assertion that DEP hindered EPA's ability to oversee enforcement (page 9). 

Violations at major sources are reported to EPA via AIRS and the monthly reports. By a simple search of its 

own database EPA has the ability to oversee enforcement and seek more information about any case. Data 

entered into AIRS is coded using codes devised by EPA to identify maior sources. These codes also show the 

type of activity performed, such as an inspection conducted or an NOV issued, and the results of the activity. By 

using the system's "Quick Look" report and setting simple search parameters, EPA can easily locate all major 

sources with violations or enforcement actions for any time period. 

Thus, using AIRS, EPA Region III could on a quarterly, monthly, or even daily basis produce a list of major 

sources with violations. To assert that merely because DEP does not activate the SV flag, EPA is hindered in its 

oversight role is absurd. In fact, EPA discussed numerous cases with DEP in the past based on information 

gathered from DEP reports, including many of the cases used as examples in the Report. 

Information regarding violations is on the AIRS system and is reported to EPA. There is simply no evidence 

that activating the SV flag on the system will lead to any different enforcement result or even any quicker 

resolution. 

Perhaps realizing that Region III was, for a decade, a willing participant in DEP's method of dealing with SVs 

without adverse consequences, the Report suggests that not activating the SV "flag" somehow leads to less 

aggressive enforcement. However, at our most recent mid-year grant review, in May 1996, EPA Region III 

officials stated that they thought that our enforcement program was very good. They stated that they had no 

problem with the actions taken or penalties collected. 

The examples used are inaccurate. While the Report does not identify the sources used as examples, and that 

information has still not been provided by EPA, we can make some educate guesses at the sources in question. 

Assuming we have made the correct guesses, DEP believes that almost every example presents incomplete 

information or slants the facts to serve other motives. We specifically request that you provide us with the 

identity of all sources used as examples. Here are examples of the incomplete information included in the 

Report -

• The example at the bottom of page 12 relates to a facility which is not a major source and thus not 

subject to SV reporting to EPA. Information about this source was in AIRS. Moreover, the suggestion 

that there were continuous violations from May 1993, until October 1995 is inaccurate. In fact, the road 

dust violations occurred three times in 1993. NOVs were issued and the problem did not recurr. A 

separate problem at a cement silo was found in November 1993, and confirmed corrected in a February 

1994, inspection. Lastly, at the loading area various attempts to correct the problem were finally 

successful in January 1995. Thereafter the control device was damaged, but repaired by October 1995. 

Penalties were resolved in September 1995. It is inaccurate to lump these separate violations together to 

suggest a continuous state of violation which was unaddressed.

• On page 13 you characterize the handling of a matter as "pay to pollute." This shows a bias or lack of 

understanding of the work required to replace a boiler. This case involved periodic and minor opacity 

violations. On numerous occasions inspections were conducted and no violations were found. The 

company made several adjustments to its operations to attempt to prevent, a recurrence. DEP required 

the company to replace the boiler (a major undertaking) and established a compliance schedule. We also 
required the company to pay a penalty for past violations and to pay a penalty monthly until replacement 

was complete. To call this "pay to pollute" or "willingness to accommodate the facility" is unfounded 

and unwarranted. EPA uses similar techniques to resolve similar matters. In fact on page ii, you endorse 

compliance schedules as appropriate. Finally this matter was fully reported to EPA via AIRS and the 

monthly NOV report.

• The case discussed at the top of page 14 is one where we agee that resolution has taken too long, but this 

issue has nothing to do with the lack of reporting to EPA. This matter was first discovered in 1992, and 

reported to EPA via the monthly report, which was what the grant narrative required for fiscal year 

1992. EPA was involved in discussions regarding the facility's request for a "bubble" permit and was 

aware of this case. We are not happy that this matter took as long as it has, but we reject any allegation 

that EPA was not informed. Data concerning this source was also entered in AIRS. AIRS data also 

shows this facility was inspected by EPA in August 1995 and was found to be in compliance.

• The case discussed on page 14 and 15 is incorrect. This facility did not have a violation in August 1995. 

The facility operated under an EPA approved "bubble" pemit which allowed volatile organic compound 

(VOC) emissions from the subject spray booth without using the incinerator. The incinerator was added 

to deal with malodor complaints and resulted in VOC controls in excess of regulator requirements. 

When it malfunctioned, the facility still was in compliance with its EPA approved permit. DEP did, 

however, report all the activity to EPA via AIRS. The second incident, operating the facility without the 

incinerator in May 1996 did violate the Pennsylvania permit and in October 1996, a civil penalty was 

assessed for this violation. This was also reported on AIRS.

• The case discussed on page 15 is greatly exaggerated. The facility did construct the boiler without a plan 

approval, but after receiving an NOV an application was made and approval was granted. More 

importantly, this is not the serious pollution problem your summary would suggest. The fact is that 

facilities are allowed to emit NOx if the emissions meet the regulatory requirements. The boiler's 

emissions meet the regulatory requirements even before the plan approval was granted. This is a prime 

example of an insignificant matter witch EPA's guidance would label a significant violation.

• The case discussed on pages 17 and 18 also contains numerous omissions. Chief among them is any 

mention that DEP collected a civil penalty in excess of $1 00,000 for the violations. Also omitted is any 

mention that this facility was not a major source subject to SV reporting prior to the summer of 1994. 

While EPA may not have discovered it, the file does contain an NOV for the temperature violations and 

a correction plan by the company. Temperature records show the plan had been successful up to the time 

of the explosion at the incinerator, which occurred for reasons unrelated to enviromental issues. After

the explosion EPA was aware of the case and discussed it several times with DEP. This information was 

also noted in the AIRS data. This is a case which illustrates how the significant violator process should 

work. When DEP discovered the source was operating without the incinerator in July 1995, an NOV 

was sent and EPA was notified via AIRS and the monthly report. The matter was discussed with EPA as 

a result of our reporting and in November 1995, the facility was identified as a SV since it truly was 

significant. Thus it is incorrect to state that DEP did not report this facility to EPA.

Performance Partnership should not be discouraged. Given the ten-year history of this dispute and the 

inaccuracies in your report, we find it distressing that you attempt to undermine the Perforrnance Partnership 

Grant (PPG) process (pages 19 and 20). DEP sees the PPG process a an opportunity for both agencies to discuss 

the SV issue openly and constructively, without dogmatic demands. The PPG represents a chance to construct a 

sensible way of dealing with SVs which will give EPA necessary oversight yet allow the states flexibility in 

dealing with individual circumstances. 

We find your conclusions and recommendations to be considerably off the mark. As noted repeatedly above, 

EPA is not and never was unaware of violations at major sources. That information is readily available in AIRS. 
EPA receives adequate information to oversee DEP's enforcement activity if EPA chooses to use it. Instead of 

recommending that EPA force its unrealistic SV guidance into the PPG process, a more constructive suggestion 

would have been for EPA to re-evaluate its SV guidance and adopt it for the PPG process. We believe a process 

can be established for open communication between the states and EPA by which violations that really are 

significant are identified and dealt with. 

Inspections

We would agree that we, and EPA, should continuously strive to improve inspections. If the final Report 

identifies specific inspections which are deficient we will take appropriate steps to make corrections. 

We are unable to respond with specificity to your allegations regarding DEP inspections since the inspections in 

question were not identified. On balance DEP does perform Level 2 inspections as contemplated by the grant. 

As you noted, DEP performed over 2000 inspections at major sources in fiscal year 1995, not to mention a large 

number of inspections at non-major source facilities. 

We request that you identify the eight inspections the Report contends were not thorough enough. Additionally, 

we would call to your attention that not all inspections we conduct are intended or required to be Level 2 

inspections. Therefore, it is necessary to determine whether the particular inspection in question was intended to 

be the Level 2 inspection. 

We also request that you identify to us each of the facilities and inspections used as examples in Chapter 3 of 

the Report and specifically the seven inspections mentioned on page 24. We have had limited success in trying 

to identify the examples used in Chapter 3. However, to the extent we have guessed correctly, we believe your 

summaries again present an incomplete or inaccurat picture. 

• The example on page 24 regarding the incinerator is incomplete. The problem in question involved 

discoloration around an access door. We believe that our four inspectors were able to determine whether 

there was leakage at the door and thus whether the incinerator was capturing the required amount of 

pollutants. We disagree that a stack test was required In addition, our records show this to be a 1990 

inspection, well before the fiscal year audited.

• The December 1994 NOV for opacity violation mentioned on page 24 was, we believe, at a facility in 

Conshohocken where DEP's regional offic is located. The company gave a reasonable explanation that 

this was a one time event. Numerous DEP personnel, including the facility inspector, drive by this 

facility on the way to work each day, no further emissions were observed and therefore we did not feel 

an additional inspection was needed.

• The broken gauge example discussed at the bottom of page 24 could be one of a couple of cases of 

broken gauges, but we cannot identify the specific case. However, your summary highlights the real 

issue. Our inspectors determined based on their experience with the source and the circumstances of the 

case that no follow up was necessary. After the fact EPA now is second-guessing that decision based on 

looking at a file.

We do not claim to be perfect. If out of these thousands of inspections only eight were not complete enough, we 

feel we did well. However, we will continue to seek improvement. 

Other Matters

We must note that your endorsement of EPA's "more aggressive" approach to continuous emission monitoring 

(CEM) data is a step in the wrong direction. While CEM data can be very useful in identifying violations which 

really are significant, to list a source as a significant violator for every minimal and transient exceedence serves 
no useful purpose. To suggest, as you do on page 27, that a facility should be considered a significant violator 

when a CEM identifies 'potential violators" is outrageous. 

The advent of Title V air perimits, the more widespread use of CEMs and the Performance Partnership program 

all serve to reinforce the conclusion that EPA's Significant Violator guidance has become outdated and needs to 

be revised. 

Conclusion

We believe DEP operates a quality air program which protects the environment and the people of Pennsylvania. 

Pennsylvania has never hidden its disagreement with EPA Region III over the significant violator issue. 

However, we do not and never have deliberately concealed information from EPA. We believed we had a 

workable relationship with Region III staff which allowed for oversight and provided for discussion of cases 

and, at times, joint enforcement actions. That relationship has been seriously damaged by the leak of this Report 

and the unfair and inaccurate nature of its allegations. We can only speculate at the real motives for this course 

of events. It is a shame that so much damage has been done over whether a "flag" was activated in a computer 

database. 

DEP is committed to working cooperatively with Region III to ensure that a proper and sensible enforcement 

program exists to protect the health and rights of Pennsylvania's citizens. 

Sincerely, 

\s\ (1)

James M. Seif 

Secretary 

Footnotes

1. The signed DEP Response as submitted by The Pensylvania Department of Environmental Protection

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Table of Contents Appendix B