Validation of Air Enforcement Data Reported to 

EPA by Pennsylvania

APPENDIX B 

EPA'S RESPONSE TO THE DRAFT REPORT

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION III

841 Chestnut Building

Philadelphia, Pennsylvania 19107

SUBJECT: Draft Report of Audit on 

Region III's Oversight of Pennsylvania's Air Enforcement Data-Region 

III's Comments

DATE: 12/18/96

FROM: W. Michael McCabe \s\ (1)

Regional Administrator (3RA00)

TO: P. Ronald Gandolfo 

Divisional Inspector General for Audit (3AI00)

GENERAL COMMENTS

Thank you for the opportunity to comment on the draft report on Pennsylvania's Air Enforcement Data (number 

E1KAF6-03-0082). The issues raised by the report are serious and worthy of the examination provided by the 

Inspector General. Both the Environmental Protection Agency (EPA) and the Pennsylvania Department of 

Environmental Protection (PADEP) have responsibilities under various laws to ensure that public health and the 

environment are protected. EPA has delegated substantial portions of the 1990 Clean Air Act (CAA) to the 

Commonwealth of Pennsylvania for implementation and enforcement. Indeed PADEP has significantly more 

resources devoted to the implementation and enforcement of the CAA in Pennsylvania than does EPA. As a 

result, we rely on PADEP to carry out inspections of their major air pollution sources to ensure they meet 

federal regulations. 

The basis of our partnership with Pennsylvania, as with other States, is the exchange of consistent, timely, and 

reliable information on violators and regular communications between State and federal officials regarding 

appropriate enforcement action. Without reliable information and open communication, determinations cannot 

be made on the best course of action to bring violators into compliance. PADEP is closer to the regulated 

community and better able to learn about its compliance problems. EPA must rely on Pennsylvania to be the 

source of most of our information concerning the compliance status of the regulated community in 

Pennsylvania. That is the reason for specifying in the CAA Section 105 grant agreement that the State report 

and identify significant violators (SVs) in accordance with the Timely and Appropriate (T&A) Enforcement 

Policy negotiated between the States and EPA. 

Our agreement to provide reports of SVs has worked well in the past. Disputes have arisen over what to call 

SVs - the State preferring not to attach the potential stigma of the designations to industrial, State, or municipal 

sources in violation. However, despite disagreement over terminology during the past 10 years, the information, 

when provided, was in an easily accessible and plainly identifiable form which promoted prompt review and 
discussion of the appropriate action to take. The process, while somewhat cumbersome, clearly identified major 

sources requiring immediate attention. If further action was required, a determination was made as to which 

Agency should conduct the appropriate follow-up. In the majority of cases, no action beyond the State's initial 

response was necessary. 

Once the State began withholding this information, EPA had no reliable and easily accessible source of data to 

determine which facilities were significantly violating clean air regulations. State reports to the EPA database -

the Aerometric Information Retrieval System (AIRS) - did not distinguish between simple violations, with little 

or no impact on public health, and more egregious violations with serious impacts. CAA Section 105 grant 

funds specifically require SVs to be identified up front, not buried in a mountain of computer data which would 

have to be analyzed and verified, resulting in wasted time and taxpayer money. The State agreed to those terms 

in the contract for receipt of clean air grant funds. 

In addition, as your report states, a review of 45 randomly selected State files revealed eight SVs that had not 

been entered into the AIRS database. Even if EPA were to analyze AIRS data for SVs, data from these files 

would not have been found. To date, EPA has not received any State issued enforcement documents for these 

violators. 

EPA has provided a list of the 64 identified violators to the State in an effort to engage officials in a discussion 

of the status of transactions and future actions. While we have had productive discussions with the State on 

better data sharing, open communication, and improved understanding of each other's interests in compliance 

and enforcement policies, the list of violators and future actions has not been resolved in our discussions. We 

hope to deal with the violations soon, so that appropriate steps can be taken to correct them. 

EPA, under the leadership of Administrator Carol M. Browner, has aggressively promoted improved 

partnerships with the States and greater appreciation of State priorities in protecting public health and natural 

resources. Critical to these relations is an environment of openness, shared information, and trust. The Inspector 

General's report has provided us with an opportunity to examine aspects of these relationships that aren't 

working as intended and to reach an understanding that ultimately will strengthen out partnership. EPA Region 

III is committed to working cooperatively with the Mid-Atlantic States to ensure strong and effective 

environmental protection for the area's citizens. 

Chapter 2

We concur with the findings expressed in this chapter and agree with the proposed recommendations. In our 

review of the State notices of violations (NOVs) for 56 of the 64 identified SVs, we determined they all appear 

to meet the definition of an SV as indicated in EPA's T&A Policy. However, as we have stated repeatedly, State 

NOVs themselves contain insufficient information to place a facility on the national violators list. More 

importantly, they cannot replace the dialogue that is required and necessary under the T&A policy and the 

Section 105 air grant commitments to determine what action to take, and which Agency should take the lead. 

Considerable effort is now underway to review each of the associated State files, discuss the compliance history 

with State officials, and make a determination whether or not to list the facility on the national violators list. We 

have also verified that Region III has not received any State-issued enforcement documents for the remaining 

eight SVs identified in your report. 

Regarding Pennsylvania's data entry into the national database, the data is neither timely nor complete, nor does 

it identify a source to be a significant violator. 

The term "significant violator" was introduced into the Agency's compliance program in 1982. The significant 

violator program was designed to identify the Agency's highest non-emergency violating sources both for 

purposes of prioritization of Agency efforts and for reporting in the Agency's Management Accountability 

System. Subsequent federal policies were developed, in concert with representatives of State and local agencies, 
to establish procedural and substantive requirements for EPA in resolving such violations, and in evaluating the 

adequacy of State efforts to resolve such violations. 

The definition of significant violator was added to the first "Timely and Appropriate" EPA/State Enforcement 

Response Policy for major violations under the Clean Air Act signed on June 28, 1984. The policy was later 

revised on February 7, 1992, to encourage a greater degree of team-building and cooperative resolution of SVs 

by all responsible agencies, and to permit an increased degree of agency flexibility in identifying and resolving 

SVs. Further, the Policy was revised to more accurately reflect the time and resources necessary to bring major 

sources into a state of continuous compliance. To that end, the time line for addressing an SV was extended an 

additional 30 days from the original policy. Each policy was developed, in conjunction with other federal 

policies, to establish a strong framework for clarifying the relative roles and responsibilities of EPA and the 

States and the mutual expectations of the various enforcement agencies. 

PADEP has been critical of EPA for placing too much emphasis on the number of SVs and considers this as 

unnecessary "bean counting". Region III disagrees with this statement. The T&A Policy was created to foster 

the development of a more complete and accurate compliance picture by setting up a process which ensures 

regular communication between EPA and States concerning the compliance status of regulated sources and 

discussion of appropriate action for both EPA and the State in each particular case. Through this process, a State 

and EPA will be more likely to address the most environmentally important violators first and be assured of 

protecting public health. The process also ensures that expeditious compliance will be achieved in every case. 

Audit Recommendation: "Using a performance measure in future Performance Partnership Grants (PPG) that 

evaluates whether the State is identifying and reporting significant violators. This practice will require EPA 

Region III to verify the accuracy of information submitted by the State." 

Regional Response: The Office of Enforcement and Compliance Assurance (OECA) at EPA in Washington, 

DC, is currently developing national reporting requirements for the enforcement component of a Performance 

Partnership Agreement (PPA). This national guidance will confirm that, even after we have successfully 

negotiated a PPA/PPG agreement, EPA will continue to have a strong need for complete and accurate State 

supplied compliance data. While we understand that it is the intent of the PPA/PPG to give greater latitude to 

the State and decrease federal oversight, we do not believe that a reduction in oversight means that EPA should 

receive less data. In fact, incomplete data hinders effective oversight. Complete and accurate data is necessary 

to support federal enforcement. 

The responsibility of federal enforcement is to ensure that there is consistency among the State enforcement 

programs so as to ensure that no economic advantage is being gained by people who fail to comply with 

environmental requirements. These concepts are embodied in the T&A process. Given the essential role of 

federal enforcement and the fundamental principles contained in the T&A process, we believe that the core 

enforcement requirements in any PPA/PPG will be a continuation of the requirements under the T&A process. 

This must involve the reporting of SVs, entering into a dialogue with EPA with respect to coordination and 

resolution, and resolving the violations according to requirements of the policy. We believe that any PPA/PPG 

must capture this process through verifiable performance measures. 

Audit Recommendation: "Withholding some of Pennsylvania's grant funds in order to achieve the desired 

results." 

Regional Response: Region III will withhold a portion of Fiscal Year 1997 CAA grant funds until EPA is 

convinced that Pennsylvania is reporting all known SVs in accordance with the T&A policy. After Pennsylvania 

has demonstrated to EPA's satisfaction that there is complete, accurate and timely reporting of all enforcement 

information, EPA will then reevaluate all its grant options. 
Audit Recommendation: "Negotiating with PADEP to resolve philosophical differences concerning enforcement 

of the CAA." 

Regional Response: Up through 1990, EPA and DEP had been conducting monthly meetings, which from our 

perspective, were very successful in satisfying the intent of the T&A policy. EPA received monthly reports 

from DEP that provided us with a list, complete with case chronology, of every source DEP considered subject 

to the T&A policy. That summary report served as a basis for informal consultation to discuss compliance 

efforts both within PADEP and EPA. This process was revamped by PADEP after the Department was 

reorganized in July 1991 and enforcement coordination was transferred from Harrisburg to the State Regional 

Offices. We are now working very diligently to reestablish that line of open communication that is so vital to 

the success of the T&A process. 

Further, the fundamental principles of shared responsibilities for enforcement of the CAA are clearly defined in 

the Agency's T&A Policy. This policy is a product of recommendations by a State/Federal Workgroup with 

representatives from STAPPA/ALAPCO and EPA Headquarters and the Regions. The final policy was also 

concurred in by the STAPPA and ALAPCO organizations. An important aspect of federal enforcement 

recognized by this policy is to ensure that there is consistency among the States and expeditious compliance. 

We believe that to renegotiate these fundamental principles would create serious discrepancies among the State 

enforcement programs and undermine the goal of nationwide consistency and protection of the public health 

and environment. If there is continued confusion by the Commonwealth as to the requirements of national 

policy, we will initiate new attempts to explain to Pennsylvania what is intended by the national policy. We are 

also prepared to discuss with Pennsylvania what mechanisms can be employed to efficiently implement the 

policy. Lastly, we are prepared to work with Pennsylvania to ensure that the implementation of the policy 

brings definite benefits to the Pennsylvania enforcement program. 

Audit Recommendation: "Requiring PADEP to certify it has reported all significant violators to EPA, as defined 

by EPA's Timely and Appropriate Policy." 

Regional Response: We concur and believe the above proposals will bring about positive change. It is also our 

intent to develop a mechanism to verify the accuracy of the information if and when it is reported by the State. 

Chapter 3

We concur with the main themes and recommendations expressed in this chapter that not all inspections 

PADEP performed were Level 2 inspections, and that violations were not always corrected timely. A Level 2 

inspection is considered a selective type of inspection in which the control device and process operating 

conditions are recorded as part of the source evaluation in addition to visible emission observations. In a typical 

application, the inspector would record such process items as feed rates, temperatures, raw material 

compositions, process rates, and such control equipment performance parameters as water flow rates, water 

pressure, static pressure drop, and electrostatic precipitator power levels. The inspector would then use these 

values to determine any significant change since the last inspection or any process operations outside normal or 

permitted conditions. Anything less than a Level 2 inspection is largely inadequate to determine compliance 

with many of the sources that DEP inspects. The problems detected in this Chapter, in part, may have resulted 

when the 1990 CAA changed the definition of "major" source in a way that caused a significant increase in the 

universe of sources requiring State inspections. This greater universe poses a significant challenge to both EPA 

and the States in providing proper balance to field activities while maintaining high standards for quality 

inspections. 

Audit Recommendation: "More aggressively enforce the requirements of the Section 105 grant awarded to 

PADEP by ensuring the State conducts Level 2 inspections to determine a facility's compliance." 
Regional Response: Region III will work with OECA in reviewing current national policies in an attempt to 

bring consistency to all State inspections. This may mean that fewer inspections will need to be conducted to 

ensure greater quality. 

Audit Recommendation: "Performs follow-up in order to resolve violations timely." 

Regional Response: We concur and will attempt to incorporate this aspect into the construction of any new 

national inspection policy. 

Audit Recommendation: "Documents their follow-up activities." 

Regional Response: Again, we concur. Appropriate documentation will become a significant issue during any 

negotiations for an effective PPA/PPG with Pennsylvania. 

Audit Recommendation: "Withhold a portion of Pennsylvania's Section 105 grant funds until the State complies 

with the inspection requirements of the grant." 

Regional Response: See above discussion on withholding grant funds. 

Chapter 4 

This brief, but significant, mention of the importance of reviewing continuous emission monitoring (CEM) data 

is an area that Region III has been concerned about for some time. CEMs include the total equipment needed to 

sample, analyze, measure, and provide a permanent record of emissions. A CEM provides direct measurement 

of a particular pollutant exiting the stack on a continuous basis. It was believed that the 1990 CAA would bring 

about a greater reliance on continuous emission monitoring. This has met with great resistance from the 

regulated community. As such, the Region developed its own enforcement policy in the use of CEM data. The 

Air, Radiation and Toxics Division has since adopted a more aggressive approach for using CEM data which 

the Inspector General recognized as a "step in the right direction." 

Audit Recommendation: "We recommend the Region III Administrator ensure that his staff reviews the 

necessary information to determine if a facility should be placed on EPA's list of significant violators, when 

CEM data identifies "potential" violators." 

Regional Response: The Air, Radiation and Toxics Division will continue with its aggressive approach in the 

use of CEM data and discuss with OECA the establishment of national policy with defined action levels. 

Footnotes

1. The Region 3 Response as submitted and signed by the Reginal Administrator

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Table of Contents Appendix C