Office of Inspector General

Audit Report

Identification and Enforcement of

RCRA Significant Non-Compliers by

EPA Region III and the

 Virginia Department of Environmental

Quality

 Audit Report No. 1999-P-00215

 September 20, 1999
Inspector General Division

Conducting the Audit: Mid-Atlantic Audit Division

Philadelphia, PA

EPA Region Covered: Region III

EPA Program Office Involved: Office of the Associate Director 

for Enforcement (RCRA)

Philadelphia, PA

Virginia Department of 

Environmental Quality

Regions Covered: Tidewater Regional Office

Virginia Beach, VA

Northern Virginia Regional

Office

Woodbridge, VA

West Central Regional Office

Roanoke, VA
September 20, 1999

MEMORANDUM

SUBJECT: Final Audit Report on the Identification and Enforcement of RCRA

Significant Non-Compliers by EPA Region III and the Virginia

Department of Environmental Quality

Audit Report Number 1999-P-00215

FROM: Carl A. Jannetti

Divisional Inspector General for Audit (3AI00)

TO: W. Michael McCabe

Regional Administrator (3RA00)

Attached is our final audit report on the Identification and Enforcement of Resource

Conservation and Recovery Act (RCRA) Significant Non-Compliers. The overall

objectives of this audit were to evaluate Environmental Protection Agency (EPA)

Region III and Virginia Department of Environmental Quality adherence to the

EPA Enforcement Response Policy, specifically, the identification and enforcement

of Significant Non-Compliers. 

This audit report contains findings that describe problems the Office of Inspector

General (OIG) has identified and corrective actions the OIG recommends. This 

report represents the opinion of the OIG. Final determinations on matters in this 

report will be made by EPA managers in accordance with established EPA audit

resolution procedures. Accordingly, the findings contained in this audit report do

not necessarily represent the final EPA position, and are not binding upon EPA in

any enforcement proceeding brought by EPA or the Department of Justice.

ACTION REQUIRED

In accordance with EPA Order 2750, you as the action official are required to

provide us a written response to the audit report within 90 days of the final audit

report date. For corrective actions planned but not completed by the response date,

reference to specific milestone dates will assist in deciding whether to close this

report.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

OFFICE OF INSPECTOR GENERAL

MID-ATLANTIC DIVISION

1650 Arch Street

Philadelphia, Pennsylvania 19103-2029

(215) 814-5800
We have no objections to the further release of this report to the public. Should you

have any questions about this report, please contact Michael Wall or me at (215)

814-5800.

Attachment
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Report No. 1999-P-00215

EXECUTIVE SUMMARY

Objectives The objectives of our audit were to determine if Region III

and the Virginia Department of Environmental Quality

(DEQ) took timely and appropriate enforcement actions

against the most serious RCRA violators. Specifically, did

the Region and the State comply with EPA’s Enforcement

Response Policies of 1987 and 1996 by:

Ç Identifying and classifying the most serious violators

as “Significant Non-Compliers.”

Ç Taking timely and appropriate enforcement actions in

accordance with the applicable Enforcement Response

Policy.

Ç Ensuring violators returned to compliance within a

timely manner.

Ç Recording accurate data in the Resource Conservation

and Recovery Information System (RCRIS).

Results-in-Brief Our audit disclosed several areas needing improvement with

respect to EPA’s Enforcement Response Policy.

DEQ Compliance

The Virginia Department of Environmental Quality rarely

classified facilities with serious RCRA violations as

Significant Non-Compliers. Consequently, DEQ did not

always take timely enforcement action against these

violators. In some cases the State delayed taking any

enforcement action, and sometimes these delays persisted for

several years. The absence of Significant Non-Complier

classifications occurred because DEQ did not incorporate

Enforcement Response Policy criteria into its enforcement

screening process. The delays occurred because DEQ
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emphasized “compliance assistance” over “escalated

enforcement.” As a result, most Significant Non-Compliers

remained unaware of the gravity of their violations. 

Although DEQ usually took appropriate enforcement actions,

these actions were unduly delayed, which may have

increased the potential for harm to human health and the

environment. In our opinion, compliance with EPA’s

Enforcement Response Policy would alleviate these

conditions.

Region III Compliance

The Region did not always classify facilities with serious

violations as Significant Non-Compliers as required by EPA’s

Enforcement Response Policy. Although for the most part

the Region took enforcement action against violators, it did

so at a delayed pace and entered inaccurate information into

RCRIS, the Agency’s information system for RCRA. The

absence of Significant Non-Complier classifications occurred

because the Region did not incorporate the Enforcement

Response Policy criteria into its enforcement screening

process. The delays occurred because the Region’s screening

process to decide the type of enforcement (i.e., informal or

formal) can take up to a year to complete. The RCRIS

inaccuracies occurred largely because regional enforcement

personnel are not adequately trained. As a result, the most

significant violators are unaware of the gravity of their

violations, enforcement is unduly delayed, and RCRIS is

inaccurate. In our opinion, compliance with EPA’s

Enforcement Response Policy and better training would help

remedy these conditions. 

Region III Timely and Appropriate (T&A) List

EPA’s Enforcement Response Policy stipulates that a facility

that has not responded to informal enforcement action and

remains out of compliance for 180 days will be classified as a

Significant Non-Complier. Despite this requirement,

Region III allows State Agencies 300 days to consider:

(a) classifying violating facilities as Significant NonCompliers, and (b) initiating formal enforcement action. 
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Consequently, facilities can remain non-compliant and

increase the potential for harm to human health and the

environment.

Missing Records

The Region did not adequately maintain official RCRA

enforcement and compliance files. Specifically, the

contractor responsible for custody of the files was unable to

provide certain documents pertaining to 10 of the 30

facilities in our random sample, taken from fiscal years 1996

and 1997 inspections conducted by the Region.

Recommendations We recommend the Region III Administrator ensure that the

Virginia DEQ:

Ç Adhere to the EPA Enforcement Response Policy;

specifically, establish procedures for identifying

Significant Non-Compliers, and take appropriate

enforcement actions to ensure their timely return to

compliance.

Ç Escalate to formal enforcement when a facility is

recalcitrant, rather than continue with “compliance

assistance.”

Ç Is aware how to refer facilities as possible Superfund

candidates to Region III.

We also recommend the Region III Administrator:

Ç Ensure regional compliance with EPA’s Enforcement

Response Policy regarding classifying Significant NonCompliers and taking timely and appropriate

enforcement action.

Ç Clearly define enforcement officer responsibilities.
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Ç Conduct monthly Tier I meetings to expedite

enforcement decisions and actions against violating

facilities.

Ç Ensure that RCRA personnel are adequately trained

in RCRIS data entry requirements and establish data

verification procedures for RCRIS input.

Ç Streamline the enforcement screening process. One

possibility would be to empower inspectors/enforcement officers to initiate informal enforcement actions.

Ç Cease the practice of issuing T&A lists to the States

for facilities out of compliance for 300 or more days.

Ç Institute the practice of issuing T&A lists to the States

for facilities out of compliance at the 180-day mark,

and require the States to make a Significant NonComplier determination and take appropriate

enforcement action.

Ç Establish adequate custody controls over official

RCRA files.

Ç Conduct a management review of the contractor

responsible for the RCRA file room.
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TABLE OF CONTENTS

EXECUTIVE SUMMARY ............................................... i

CHAPTER 1 ......................................................... 1

INTRODUCTION ............................................... 1

Objectives ................................................ 1

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

Noteworthy Accomplishments ................................ 4

Scope and Methodology ..................................... 5

Prior Audit Coverage ....................................... 8

CHAPTER 2 ......................................................... 9

DEQ COMPLIANCE WITH ENFORCEMENT RESPONSE POLICY ..... 9

Significant Non-Compliers Not Designated ..................... 9

Delay in Enforcement Action ............................... 14

Conclusion .............................................. 16

Recommendations ........................................ 17

Region III’s Response to Recommendations .................... 17

Virginia DEQ’s Response to Recommendations ................. 17

OIG’s Evaluation of Responses .............................. 18

CHAPTER 3 ........................................................ 19

REGION III COMPLIANCE WITH EPA ENFORCEMENT RESPONSE

POLICY ................................................ 19

Significant Non-Compliers Not Designated .................... 19

Delay in Enforcement Action ............................... 20

Inaccuracies with RCRIS Data .............................. 21

Conclusion .............................................. 22

Recommendations ........................................ 23

Region III’s Response to Recommendations .................... 23

OIG’s Evaluation of Region III’s Response ..................... 24

CHAPTER 4 ........................................................ 25

REGION III TIMELY AND APPROPRIATE LIST .................... 25

Region III’s 300-Day T&A List .............................. 25

Significant Non-Compliers on the FY 1997 T&A Lists ........... 26

Conclusion .............................................. 28

Recommendations ........................................ 28

Region III’s Response to Recommendations .................... 28

OIG’s Evaluation of Region III’s Response ..................... 29
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CHAPTER 5 ........................................................ 31

MISSING RECORDS ........................................... 31

Missing Data ............................................ 31

Recommendations ........................................ 33

Region III’s Response to Recommendations .................... 33

OIG’s Evaluation of Region III’s Response ..................... 33

APPENDIX A ...................................................... 35

GLOSSARY ................................................... 35

APPENDIX B ...................................................... 39

Region III’s Response to Draft Report ........................ 39

Virginia DEQ’s Response to Draft Report ..................... 45

APPENDIX C ...................................................... 51

DISTRIBUTION ............................................... 51
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Report No. 1999-P-00215

CHAPTER 1

INTRODUCTION

Objectives EPA advocates taking effective enforcement action against

the most serious violators of hazardous waste regulations. 

The goal of the Agency’s enforcement program is to attain

and maintain a high rate of compliance within the regulated

community, by establishing a comprehensive monitoring and

inspection program. This program is to address the most

serious violators with timely and effective enforcement

actions, in order to return facilities to compliance as quickly

as possible and to deter future noncompliance. 

The objectives of our audit were to determine if Region III

and the Virginia Department of Environmental Quality

(DEQ) took timely and appropriate enforcement actions

against the most serious violators. Specifically, did the

Region and the State comply with the Enforcement Response

Policies of 1987 and 1996 by:

Ç Identifying and classifying the most serious violators

as “Significant Non-Compliers.”

Ç Taking timely and appropriate enforcement actions in

accordance with the applicable Enforcement Response

Policy.

Ç Ensuring violators returned to compliance within a

timely manner.

Ç Recording accurate data in the Resource Conservation

and Recovery Information System (RCRIS).

Background Hazardous waste is solid waste which may pose a threat to

human health or the environment because of its quantity,
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concentration, or physical, chemical, or infectious

characteristics. In 1976, Congress enacted the Resource 

Conservation and Recovery Act (RCRA) because of past

hazardous waste mismanagement. Subtitle C of this Act

established a framework for managing hazardous waste from

its generation to final disposal. RCRA also mandated that

EPA develop a comprehensive set of hazardous waste

regulations. As a result, all solid waste “generators” must

determine if their waste is hazardous, and thus subject to

regulation under Subtitle C. Also, these generators, as well

as any “transporters,” or “treatment, storage, and disposal

facilities” must manage their hazardous wastes in

accordance with Subtitle C. In addition, most treatment,

storage, and disposal facilities must obtain a permit, which

outlines precautions to be taken to manage waste in a

manner that adequately protects human health and the

environment. 

Congress intended for the States to implement RCRA,

coupled with oversight by the Federal Government. Under

RCRA Section 3011, EPA awards annual grants to develop

and implement State hazardous waste programs, which

become “authorized” when EPA determines that the State

programs are consistent with the Federal program. The

States negotiate workloads with EPA and have primary

responsibility for Subtitle C administration. However, EPA

retains oversight responsibility, parallel enforcement

authority, and can withdraw authorization if a State

program fails to comply with RCRA regulatory requirements. 

Currently, all States within Region III are authorized and

overseen by the Region.

In 1987, EPA issued an Enforcement Response Policy (ERP). 

In 1996, EPA revised this policy, which together with several

other documents, define the Federal RCRA Enforcement

Program. Basically, the ERP requires that when inspections

disclose facilities with violations: (a) timely and appropriate

enforcement action is warranted, and (b) such enforcement

action can be either formal or informal depending upon the

seriousness of the violations. Response time guidelines are

established in the ERP for taking formal and informal
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enforcement actions, and the policy establishes criteria for

determining the appropriate action to be taken.

Inspections and

Enforcement

Formal enforcement actions, which include administrative

orders, civil or criminal lawsuits, and/or monetary penalties

are reserved for Significant Non-Compliers, or “SNCs,”

defined as:

Those facilities which have caused actual

exposure or a substantial likelihood of exposure

to hazardous waste or hazardous waste

constituents; are chronic or recalcitrant

violators; or deviate substantially from the

terms of a permit, order, agreement or from

RCRA statutory or regulatory requirements.

(Note: The 1987 Enforcement Response Policy

classified the worst facilities as High Priority

Violators).

Specific formal enforcement tools include: (a) “Consent” or

“Final Orders,” which are agreements between the State or

EPA and the facility owner; (b) “Unilateral Orders,” which

are issued by the State or EPA to assert the Agency’s

position; or (c) a referral to the Department of Justice or the

Attorney General’s Office for action. 

Informal enforcement actions are minimal responses

reserved for the less serious, or secondary violators. Such

actions include letters of non-compliance, letters of warning,

or notices of violation, but not monetary penalties. 

Nonetheless, a secondary violator can be reclassified as a

Significant Non-Complier should the facility fail to return to

compliance. Also, where appropriate, in lieu of enforcement,

the Enforcement Response Policy advocates “compliance

monitoring” or “compliance assistance” to bring facilities into

compliance with regulations. 

Region III inspections are conducted by both the RCRA

Compliance and Enforcement Branch (of the Waste and

Chemicals Management Division), and by the Region’s

Environmental Services Division (in Annapolis, Maryland
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and Wheeling, West Virginia). Inspections which yield

violations are referred to the RCRA Compliance and

Enforcement Branch. After screening for past violations,

this Branch evaluates the seriousness of the current

violation, its potential or actual harm to public health or the

environment, any enforcement actions taken, and whether it

is a repeat or recurring violation. The Branch’s

recommendation is then formulated into an enforcement

action at a quarterly meeting attended by the Environmental

Services Division; the Office of Enforcement, Compliance and

Environmental Justice; the Office of Regional Counsel; and

the Criminal Investigations Division. 

In Virginia, State RCRA inspections and enforcement actions

are conducted by six Department of Environmental Quality

(DEQ) regional offices, using as criteria, DEQ’s Compliance

and Enforcement Guidance Manual, dated March 12, 1996. 

As this manual did not fully address the issue of Significant

Non-Compliers, few facilities inspected by the State were

designated as such. However, DEQ officials informed us that

the manual would be revised and fully address this issue.

Timely &

Appropriate List

Region III maintains a list of facilities that have not

responded to State informal enforcement actions and that

have been non-compliant for more than 300 days. Monthly,

the Region forwards this “timely and appropriate” (T&A) list

to each State to determine appropriate enforcement action. 

Quarterly, the Region holds conference calls to discuss the

status of these T&A facilities. According to the Enforcement

Response Policy, EPA can initiate its own enforcement action

if a State fails to take timely and appropriate enforcement.

At the beginning of FY 1997, there were approximately 1,300

facilities on the Region’s T&A list; by fiscal year’s end this

number had been reduced to 162 facilities.

Noteworthy

Accomplishments

Overall, we found Virginia DEQ’s compliance and

enforcement specialists very knowledgeable about the

facilities within their jurisdiction. One particularly strong

aspect of the State’s program is that the personnel who

perform the inspections, also prepare and sign the informal
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enforcement letters, and do so usually within a month of the

inspection. This helped ensure timely enforcement, as many

of the secondary violators swiftly returned to compliance.

Scope and

Methodology

This audit was performed in accordance with the

Government Auditing Standards (1994 Revision) issued by

the Comptroller General of the United States as they apply

to program audits. Our audit included tests and other

auditing procedures we considered necessary. We evaluated

the effectiveness of the hazardous waste enforcement and

compliance programs for Region III and Virginia DEQ. We

also evaluated the extent of oversight and guidance that

Region III provided to DEQ in the management of its

program. 

We conducted our fieldwork in EPA Region III and in three

Virginia DEQ regional offices. At Region III, we reviewed

the RCRA Compliance and Enforcement Branch under the

Waste and Chemicals Management Division. In Virginia, we

reviewed the Tidewater Regional Office in Virginia Beach,

the Northern Virginia Regional Office in Woodbridge, and

the West Central Regional Office in Roanoke. We also

accompanied Virginia DEQ personnel on two facility visits. 

For Region III, we randomly selected for review 30 of the 54

RCRA facilities inspected by regional inspectors during fiscal

years 1996 and 1997. This sample included 21 facilities with

violations to determine if they should have been classified as

Significant Non-Compliers and 9 facilities with no violations

to determine the accuracy of the reports on these facilities. 

However, we were only able to review 20 of the facilities,

because the Region could not locate the files or inspection

reports for the remaining 10 facilities.

We selected Virginia for review because it reported a high

percentage of violations identified for fiscal years 1996 (21%)

and 1997 (30%) as compared to other States within the

Region, and because the State reported an 86% reduction on

its T&A lists during FY 1997. We selected the three DEQ
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offices based on percentages of violations reported during

inspections, seeking one high, one medium, and one low.

INSPECTIONS WITH VIOLATIONS

1996 1997

Tidewater 30% 49%

Northern Virginia 32% 32%

West Central 22% 15%

We randomly selected for review the files for 92 of the 638

facilities inspected by the three DEQ offices as follows:

DEQ INSPECTIONS WITH

VIOLATIONS

1996 1997

Tidewater 13 20

Northern Virginia 14 18

West Central 16 11

We also reviewed 54 facilities from EPA Region III’s fiscal

year 1997 T&A lists to determine if the facilities should have

been classified as Significant Non-Compliers, and if so,

whether enforcement and compliance actions were timely. 

T&A LIST FACILITIES REVIEWED

11/01/96 3/30/98

Tidewater 11 1

Northern Virginia 13 2

West Central 27 0

 

At both Region III and DEQ, we reviewed RCRA compliance

and enforcement documents including: inspection reports,
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notices of violations, consent orders, administrative orders,

and other related correspondence. We compared the data in

RCRIS to other EPA and State records to determine if the

information was accurate. 

We reviewed management controls and procedures

specifically related to our objectives. However, we did not

review the internal controls associated with the input and

processing of information into RCRIS or other automated

records systems. We reviewed Region III’s Fiscal Year 1997

Assurance Letter prepared to comply with the Federal

Managers’ Financial Integrity Act and noted no weaknesses

pertaining to the scope of work audited. 

In summary, we reviewed enforcement and compliance

procedures taken by the Region and by DEQ against

violators, especially Significant Non-Compliers, or those we

believe should have been classified as such. Specifically, we:

Ç Discussed facility files with Region III and DEQ staff.

Ç Evaluated internal controls over the inspection and

enforcement and compliance processes.

Ç Reviewed enforcement and compliance actions taken

by Region III and DEQ against violators and

evaluated the effectiveness of these actions. 

Ç Analyzed the procedures followed for classifying

Significant Non-Compliers.

Our audit noted weaknesses in both Region III’s and DEQ’s

hazardous waste programs. These weaknesses are discussed

in Chapters 2 through 5.

We completed our survey on June 16, 1998, and initiated an

in-depth audit. We submitted position papers on potential

issues to Region III on January 6, 1999. On the same day we

issued excerpted position papers to DEQ on State-specific

topics. We received DEQ’s response on January 27, 1999,
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and the Region’s response on January 29, 1999, and adjusted

our findings and recommendations accordingly. 

We issued the draft report on June 30, 1999. Region III and

Virginia DEQ submitted their responses on August 9, 1999. 

We changed the draft report where necessary, but our overall

positions remained unchanged. The responses and our

evaluation of the State’s and Region III’s responses are

summarized at the end of Chapters 2 through 5, and

provided in their entirety in Appendix B. Virginia DEQ

declined an exit conference. We held an exit conference with

Region III on September 8, 1999. 

Prior Audit

Coverage

No recent EPA Office of Inspector General (OIG) audit

reports addressed Region III RCRA Enforcement &

Compliance programs. Our review is similar to an OIG

Headquarters Audit Division report entitled, Significant

Non-Complier Enforcement by EPA and Washington State

(Report No. E1GSF7-11-0019-8100093) issued on March 31,

1998, and two OIG Eastern Audit Division reports entitled:

RCRA Significant Non-Complier Identification &

Enforcement by the Rhode Island Department of

Environmental Management (Report No. E1GSD8-01-0006-

9100078) issued on January 21, 1999; and, Region 2's

Enforcement of the Resource Conservation and Recovery Act

(RCRA) (Report No. 1999-1-00224) issued on July 21, 1999.
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CHAPTER 2

DEQ COMPLIANCE WITH ENFORCEMENT RESPONSE POLICY

The Virginia Department of Environmental Quality rarely

classified facilities with serious RCRA violations as

Significant Non-Compliers. Consequently, DEQ did not

always take timely enforcement action against these

violators. We also noted that in some cases the State delayed

taking any enforcement action, and that sometimes these

delays persisted for several years. This absence of

Significant Non-Complier classifications occurred because

DEQ did not incorporate Enforcement Response Policy

criteria into its enforcement screening process. The delays

occurred because DEQ emphasized “compliance assistance”

over “escalated enforcement.” As a result, most Significant

Non-Compliers remained unaware of the gravity of their

violations. Although DEQ usually took appropriate

enforcement actions, these actions were unduly delayed,

which may have increased the potential for harm to human

health and the environment. In our opinion, compliance

with EPA’s Enforcement Response Policy would alleviate

these conditions.

Significant NonCompliers Not

Designated

According to EPA policy, a facility is a Significant NonComplier if it: (a) causes an actual or potential release of

hazardous waste; (b) is recalcitrant; (c) experiences recurring

violations; or (d) significantly deviates from RCRA

regulations. DEQ conducted 638 inspections during fiscal

years 1996 and 1997. From this amount, we randomly

selected 92 facilities, plus 54 other Virginia facilities listed

on EPA Region III’s fiscal year 1997 “timely and appropriate”

lists. Whereas DEQ designated 2 of these 146 facilities as

SNCs, we concluded that 12 facilities should have been so

designated. 
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Following are two examples: the first illustrates the

circumstances regarding one of the facilities deemed as a

Significant Non-Complier by the State; the second example

depicts a facility which we believe not only should have been

a SNC, but also referred to EPA for a possible Superfund

response.

DEQ Example -

Case VA12

DEQ classified this facility as a Significant Non-Complier

following a December 1996 inspection, which revealed

violations for: (1) inadequate training of hazardous waste

handlers; (2) poorly labeled hazardous waste containers;

(3) open containers; and (4) containers with missing

accumulation dates. According to the Enforcement Response

Policy, the State should have brought formal enforcement

action against this facility by July 1997. Instead, DEQ

engaged in only informal enforcement actions over a twoyear period. This occurred because the enforcement

specialist believed he could gain compliance using the

underlying threat of a possible formal enforcement order

containing a civil penalty. However, the cordiality of his

communications with the facility appeared to belie this

“threat” in that they contained language such as: “We regret

the necessity. . . .” and “Won’t you please . . . . ” and “. . . we

urge you to send it at your earliest convenience.” 

Having been unsuccessful in gaining compliance, in May

1998, the enforcement specialist recommended that DEQ

assess a civil charge against the facility noting that “. . . the

extent and gravity of the violation is major (capability and

prior history with similar violations, respectively).” 

However, when DEQ attempted to attain the facility’s

agreement with a consent order, the facility refused to

cooperate. And, instead of issuing a Unilateral Order to

force the facility into compliance, DEQ conducted another

inspection and issued an informal enforcement action. In

July 1998, DEQ again considered trying the formal

enforcement route. However, as of January 1999 the formal

Enforcement Order had yet to be issued, and two years had

passed since the facility was classified as a Significant NonComplier.
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EPA OIG Example

- Case VA01

Regarding the second example, we believe this facility should

have been classified as a Significant Non-Complier, and also

referred to EPA for possible Superfund action.

Chronology

January 1992 – Complaint about illegal dumping of broken

batteries and gasoline.

August 1992 – The State inspection found problems

regarding piles of tires and petroleum, gasoline, and

antifreeze spills. 

July 1993 – DEQ requested facility owner to immediately

cease and close operation of unauthorized facility, remove all

wastes, and sample soil and groundwater.

October 1993 – Soil and water samples revealed levels of

lead ranging from 5.4 parts per million (ppm) to 730 ppm

(the maximum allowable level is 5 ppm). DEQ continued to

inspect the facility over the next two years, but in accordance

with its policy of “compliance assistance” also continued to

give the owner time extensions.

October 1995 – DEQ inspection disclosed the owner placed

contaminated soil and batteries on adjacent Navy property,

thus creating an unauthorized waste pile in violation of

RCRA hazardous waste regulations. Thus, the facility was

now subject to RCRA.

January 1996 to January 1997 – DEQ threatened owner

with enforcement, but no Enforcement Order was issued due

to the shortage of personnel. DEQ noted slow progress on

the lead contamination and expressed concern over the

owner releasing freon from crushed automobiles.

February 1997 – DEQ sent a “Notice of Violation” to the

owner and threatened formal enforcement action.
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March 1997 – DEQ and owner discussed actions he must

take, including removing tires and checking for more buried

batteries.

May 1997 – Facility assigned a “non-notifier” identification

number; i.e., EPA made aware of hazardous waste on the

site.

September 1997 – Federal judge fined the facility owner

$24,000 and sentenced him to six months of home detention

for crushing thousands of vehicles, without first removing

their CFC-laden freon. This was a violation of the Clean Air

Act. 

October 24, 1997 – Formal Enforcement Order signed

whereby the owner agreed to: remove the waste from his site

and the Navy property; conduct soil and groundwater

monitoring; submit and implement closure plans; remove

existing tires within nine months; develop and implement a

petroleum waste management plan; and donate $20,000 to a

local Department of Emergency Medical Services.

November 1997 – Local municipality orders owner to

remove tires located in an area adjoining a campground by

March 1998, because it fears the tires will attract Asian

Tiger Mosquitos, which are known carriers of encephalitis

(inflammation of the brain). The abundance of tires at the

facility was addressed by DEQ in the October 1997 Order as

a solid waste violation.

February 1998 – Owner advised DEQ of his inability to pay

$250,000 for the removal and disposal of approximately 400

tons of waste.

August 1998 – Joint EPA OIG/DEQ site visit; facility

contains approximately 50,000 tires and lacks adequate soil

and groundwater testing. Thus owner is in violation of the

DEQ “Enforcement Order.” [Note: Since the OIG completed

audit fieldwork shortly after this visit, no further status was

obtained.] 
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The nine additional facilities that we believe should have been

classified as Significant Non-Compliers were:

FACILITY SUMMARY

Case VA02 Facility had outstanding violations regarding: improper storage of

hazardous waste for five to six years; manifest requirements; pretransport requirements; and other generator requirements. DEQ

took informal enforcement in 1997 and formal enforcement in 1998

without classifying the facility as a SNC, even though there were

significant deviations from RCRA regulations and the possibility of

a release of hazardous waste.

Case VA03 An inspection on 04/21/94 noted four violations dealing with

record- keeping requirements and container requirements. In

03/96, DEQ determined that two of the 04/94 violations remained

uncorrected, and although DEQ signed a final order in 06/97 (more

than 3 years later), it never classified the facility as a SNC, despite

it being cited for recurring violations.

Case VA04 An inspection on 04/21/94 noted serious violations, such as

unpermitted storage and treatment of hazardous waste and other

violations concerning training and record-keeping requirements. 

DEQ did not sign a final order until 06/97, and it never classified

the facility as a SNC, despite it being cited for recurring violations.

Case VA05 An inspection on 12/14/95 noted several types of violations similar

to those reported on past inspections, i.e., open containers, poorly

labeled containers, and inadequate contingency plans. The facility

was a repeat and chronic violator; therefore, DEQ should have

classified it as a SNC.

Case VA06 While removing an underground storage tank, the facility

discovered it contained 2,700 gallons of pentachlorophenol. The

unpermitted storage of this waste, as well as an actual release of

hazardous waste, should have resulted in this facility being

classified as a SNC.
FACILITY SUMMARY

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Case VA07 An inspection on 12/13/94 noted more than 20 violations, including

the unpermitted storage of hazardous waste. Although the facility

removed the waste within 16 days of the inspection, there had been

the potential for harm to human health and the environment. 

Also, DEQ did not finalize an enforcement order until three years

after the inspection and never classified the facility as SNC.

Case VA08 An inspection on 01/08/97 noted violations similar to those

reported for past inspections, i.e., poorly labeled containers,

missing accumulation dates, and open containers. Although DEQ

took timely and appropriate enforcement action, it never classified

this repeat violator as a SNC.

Case VA09 An inspection on 02/12/96 noted several violations, including the

transportation of waste to an unpermitted facility. Although DEQ

finalized an Enforcement Order, it failed to classify the facility as a

SNC, even though it was cited for repeat deviations from RCRA

regulations.

Case VA10 Five violations remained outstanding from a 01/31/95 inspection.

DEQ’s primary concern was that the facility’s “drip pad” could not

contain the hazardous waste because of cracks. DEQ should have

classified the facility as a SNC, because it was recalcitrant and

violated the conditions of its 11/96 Consent Order.

Delay in

Enforcement

Action

In addition to not identifying Significant Non-Compliers,

DEQ was also found to have taken delayed enforcement

action against facilities, and that these delays persisted for

years. Specifically, DEQ delayed enforcement against 13 of

the 94 facilities we reviewed for timeliness (92 facilities from

our random sample + 2 Significant Non-Complier facilities

from the “Timely and Appropriate Lists”) and these delays

ranged from 180 to 1,395 days as follows:
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Report No. 1999-P-00215

FACILITY

INSPECTION

DATE

ORIGINAL

VIOLATION

DATE

 ENFORCEMENT DAYS LATE

AS OF

DUE TAKEN AUDIT

Case VA06 08/25/94 08/25/94 01/95 Pending 1,395

Case VA07 12/13/94 12/13/94 04/95 04/98 1,080

Case VA03 03/21/96 04/21/94 12/94 06/97 910

Case VA04 03/21/96 04/21/94 12/94 06/97 910

Case VA01 01/03/97 09/27/95 10/95 10/97 730

Case VA11 11/19/96 02/02/95 05/95 11/96 570

Case VA12 08/05/97 12/12/96 07/97 Pending 450

Case VA10 01/31/97 01/31/95 09/95 11/96 420

Case VA13 10/31/96 10/31/96 02/98 None 240

Case VA14 10/25/95 10/25/96 01/96 09/96 240

Case VA02 11/01/96 11/01/96 09/97 04/98 210

Case VA15 11/20/95 11/20/95 03/96 09/96 180

Case VA16 02/13/96 02/13/96 05/96 11/96 180

Case VA06, at 1,395 days late, was the extreme case of

delayed enforcement. We believe this facility should have

been classified as a Significant Non-Complier, because it

stored pentachlorophenol without a permit for more than

nine years. Pentachlorophenol is a hazardous waste which

can harm the liver, kidneys, blood, lungs, nervous systems,

immune systems, and gastrointestinal tracts. In September

1994, the State learned that the soil adjoining the tank was

contaminated and that the tank contents had seeped through

the subsurface and entered a nearby creek. Nonetheless,

DEQ did not classify the facility as a Significant NonComplier and it delayed taking formal enforcement for

several years. According to the enforcement specialist

currently assigned to this case, the delay occurred because

DEQ was undergoing a major reorganization and the

enforcement function was being decentralized.
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Report No. 1999-P-00215

Conclusion DEQ experienced difficulties classifying facilities with

serious RCRA violations as Significant Non-Compliers and

taking expedient and appropriate enforcement action against

such violators. According to DEQ personnel, these problems

derived from a variety of reasons. These reasons included:

Ç DEQ did not incorporate Enforcement Response Policy

Significant Non-Complier criteria into its enforcement

screening process because State personnel were

unaware of these criteria.

Ç DEQ personnel did not refer any facilities as possible

Superfund candidates because they never thought to

do so, or did not know how to do so.

Ç Lengthy enforcement delays occurred because DEQ

emphasized “compliance assistance” to violators.

Ç Frequent reorganizations of DEQ functions severely

disrupted enforcement efforts between the Central

Office in Richmond and the six State Regional Offices.

Nonetheless, we did note progress. For example, the

inspectors and specialists in the DEQ Regional Offices we

visited were empowered to initiate the enforcement process

where warranted, and most did so within a month of the

inspection. This is a “best practice” that we will recommend

that EPA Region III adopt. Nevertheless, we are convinced

that DEQ should take further action, namely, to lessen the

emphasis on “compliance assistance,” and to abide by the

criteria provided in EPA’s Enforcement Response Policy. We

also believe that both DEQ and Region III should discuss the

referral of facilities as possible Superfund candidates.
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Report No. 1999-P-00215

Recommendations We recommend the Region III Administrator ensure that the

Virginia DEQ:

2.1 Adhere to the EPA Enforcement Response Policy;

specifically, establish procedures for identifying

Significant Non-Compliers, and take appropriate

enforcement actions to ensure their timely return to

compliance.

2.2 Escalate to formal enforcement when a facility is

recalcitrant, rather than continue “compliance

assistance.”

2.3 Is aware how to refer facilities as possible Superfund

candidates to Region III.

Region III’s

Response to

Recommendations

The Region concurred with the recommendation regarding

Virginia DEQ’s compliance with EPA’s Enforcement

Response Policy. The Region indicated it is working with the

Office of Enforcement, Compliance and Environmental

Justice, and with DEQ to review and finalize the State’s

Policy such that it is equivalent to EPA's.

Regarding escalation of enforcement actions, the Region

asserted that many of Region III states (including Virginia)

do not have the ability to issue unilateral complaints, and

therefore, must rely on negotiated settlements for the

majority of their formal enforcement actions. 

According to the Region, Virginia asserted that the DEQ staff

is aware of when and who to contact at EPA when it has a

facility that may require action under Superfund. 

 DEQ’s Response

to

Recommendations

Virginia responded that its current revision to the DEQ

Enforcement Manual established procedures for identifying

Significant Non-Compliers and for taking appropriate

enforcement actions to ensure timely return to compliance. 

The State’s Manual also discusses guidance and procedures
18

Report No. 1999-P-00215

for ensuring that cases involving recalcitrant facilities are

escalated to formal enforcement in a timely manner. DEQ

emphasized that compliance assistance remains an

important part of its efforts to assure consistent compliance

among the regulated community. However, when a facility is

recalcitrant, or when the environment or public health is at

risk, DEQ will escalate such cases to formal enforcement. 

The State also maintained that its Office of Remediation

Programs (ORP) continuously interacts with EPA’s

Superfund staff, and cross-trains its ORP and RCRA staff on

hazardous waste and Superfund issues. 

OIG’s Evaluation

of Responses

EPA’s and DEQ’s responses concerning DEQ’s establishment

of guidance and procedures to comply with the requirements

of the EPA Enforcement Response Policy meet the intent of

our recommendation. 

We disagree with Region III’s comments that DEQ does not

have the ability to issue unilateral complaints against

recalcitrant violators. According to Virginia Code, the State 

does have the ability to issue unilateral complaints against

recalcitrant violators, and that such complaints may include

a penalty of up to $10,000. Therefore, we still recommend

that formal enforcement be initiated. 

We disagree with Region III’s comments that DEQ employees

were aware when to refer sites to EPA. During our review,

several DEQ employees/managers informed us that they had

been unaware of the option of referring sites to EPA. DEQ’s

actions to provide additional training meets the intent of our

recommendation. No further recommendation is offered.
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Report No. 1999-P-00215

CHAPTER 3

REGION III COMPLIANCE WITH EPA ENFORCEMENT RESPONSE

POLICY

The Region did not always classify EPA-inspected facilities

with serious violations as Significant Non-Compliers as

required by EPA’s Enforcement Response Policy. Although

for the most part the Region took enforcement action against

violators, it did so at a delayed pace and entered inaccurate

information into RCRIS, the Agency’s information system for

RCRA. The absence of SNC classifications occurred because

the Region did not incorporate the Enforcement Response

Policy criteria into its enforcement screening process. The

delays occurred because the Region’s screening process to

decide the type of enforcement (i.e., informal or formal) can

take up to a year to complete. The RCRIS inaccuracies

occurred largely because regional enforcement personnel are

not adequately trained. As a result, the most significant

violators are unaware of the gravity of their violations,

enforcement is unduly delayed, and RCRIS is inaccurate. In

our opinion, compliance with EPA’s Enforcement Response

Policy and better training would help remedy these

conditions. 

In the previous chapter we discussed RCRA cases where

DEQ inspected the facilities and was responsible for

enforcement. In this chapter we will discuss RCRA cases

where Region III performed these functions.

Significant NonCompliers Not

Designated

We reviewed inspection reports for 20 facilities, none of

which had been classified by the Region as Significant NonCompliers. We believe that 4 of the 20 facilities warranted

SNC classification as follows: 
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Report No. 1999-P-00215

FACILITY SUMMARY

Case 01 Significant and potentially health-threatening

violations for elevated levels of lead being stored

without a permit for almost three years. There was a

substantial potential for harm to the environment 

because the sludge stored at the facility contained

lead toxicity at 12 times the regulatory level and was

believed to have been leaking from the storage tank. 

Case 02 Numerous violations considered as chronic/repeat

violations since the mid-1980s, as well as violations of

the Federal Facility Compliance Agreement. 

Case 03 Chronic/repeat violations for improper labeling and

accumulation dates that were also identified in prior

inspections as long as four years earlier.

Case 04 Numerous permit violations considered as major

deviations from RCRA regulations.

Even though the facilities were not classified as Significant

Non-Compliers, in three of the four cases the Region took

“formal” enforcement action, the appropriate response for

Significant Non-Compliers. But in Case 03 the Region opted

instead to take “informal” enforcement, the minimally

appropriate response for secondary violators, despite the fact

that repeated inspections identified identical violations. 

Delay in

Enforcement

Action

The Region also did not always take timely enforcement

action against violators. Specifically, Region III delayed

enforcement against 4 of the 20 facilities in our review as

follows:

FACILITY INSPECTION 

DATE 

ENFORCEMENT

 DUE DATE

DAYS LATE 

(AS OF AUDIT)

Case 02 12/12/96 06/10/97 350+

Case 05 03/25/97 09/27/97 250+

Case 06 03/26/97 09/22/97 250+

Case 07 06/04/97 12/04/97 180+
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Report No. 1999-P-00215

Regarding the delays, RCRA regional personnel stated that

the enforcement screening process takes from several months

to over a year to complete. In one instance, an enforcement

officer’s unawareness of his responsibility for the screening

process led to a case remaining idle for more than a year. 

We were also informed by Region III personnel that informal

enforcement cases are sometimes ignored, because they are

considered as a lesser priority than formal enforcement

actions. Another element in the time it takes the Region to

process an enforcement action is the fact that its inspectors

are “observers,” i.e., they do not draw conclusions as to

whether or not a facility committed a violation. This decision

is made jointly by upper management and the Office of

Regional Counsel. Although we did not review the Region III

screening process time frames, we did note that the DEQ

empowered its compliance specialists to process informal

enforcement actions, and that these specialists generally

accomplished this within 30 days of the inspection.

Inaccuracies with

RCRIS Data

Finally, Region III also experienced difficulty with inputting

accurate data in RCRIS, the national information system

used by EPA for program management, regulation

development, and regulation enforcement. We noted

discrepancies with such data for fiscal years 1996 and 1997

inspections on 13 of the 20 cases we reviewed. These

included unrecorded violations, missing or inaccurate

compliance dates, invalid violations, duplicate inspections,

and incorrect inspection types as follows:

FACILITY DISCREPANCIES

Case 01 8 violations on inspection report, only 1 violation

in RCRIS. Facility should have been coded as a

SNC.

Case 02 Facility should have been coded as a SNC for

chronic violations.

Case 03 Compliance date of 06/23/97 missing in RCRIS.

Facility should have been coded as a SNC for

chronic violations.
FACILITY DISCREPANCIES

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Report No. 1999-P-00215

Case 04 Facility should have been coded as a SNC for

violations considered to be a potential and

imminent threat to human health and the

environment.

Case 05 7 violations on inspection report, only 5 violations

in RCRIS.

Case 06 4 violations on inspection report, only 2 violations

in RCRIS.

Case 08 5 violations on inspection report, only 2 violations

in RCRIS.

Case 09 8 violations on inspection report, only 2 violations

in RCRIS. Compliance date of 06/26/97 missing

in RCRIS.

Case 10 Compliance date should have been 05/22/97

instead of 02/10/97. 

Case 11 Erroneous violation.

Case 12 Erroneous violation; facility reclassified as

Conditionally Exempt Small Quantity Generator

and not liable for violations.

Case 13 Erroneous violation; facility reclassified as a

Conditionally Exempt Small Quantity Generator

and not liable for violations.

Case 14 Inspection report cited only 1 violation yet 3

violations entered in RCRIS. 

Inaccurate data has a cascading effect on the entire program. 

If the data is incorrect, Region III cannot devote the proper

number of program resources to the enforcement program,

and management cannot make sound compliance decisions

about the worst violators. Inaccurate data could also lead to

erroneous conclusions of RCRA accomplishments. 

Conclusion According to regional RCRA personnel, Region III has yet to

incorporate the Agency’s Enforcement Response Policy
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Report No. 1999-P-00215

criteria into its enforcement screening process, or to begin a

policy whereby it informs facilities of violations. We were

also informed that RCRA personnel were either: (a)

unaware of the definition for a Significant Non-Complier; (b)

found it too subjective; and/or (c) unfamiliar with RCRIS

data-entry requirements for Significant Non-Complier

facilities.

Recommendations We recommend the Region III Administrator:

3.1 Ensure regional compliance with EPA’s Enforcement

Response Policy regarding classifying Significant NonCompliers and taking timely and appropriate

enforcement action.

3.2 Clearly define enforcement officer responsibilities.

3.3 Conduct monthly Tier I meetings to expedite

enforcement decisions and actions against violating

facilities.

3.4 Ensure that RCRA personnel are adequately trained

in RCRIS data entry requirements and establish data

verification procedures for RCRIS input.

3.5 Streamline the enforcement screening process. One

possibility would be to empower the

inspectors/enforce-ment officers to initiate informal

enforcement actions.

Region III’s

Response to

Recommendations

The Region recognizes the importance of properly classifying 

Significant Non-Compliers and taking timely enforcement

actions, and has therefore taken actions to correct the

“perceived” weaknesses in the program. To ensure that SNC

determinations are made for facilities that warrant such a

determination, EPA revised its enforcement screening form

to include additional questions about the nature of the

violations. [This screening form was provided to the OIG as

an attachment to EPA’s official response; however, because it
24

Report No. 1999-P-00215

is enforcement sensitive, it is not included as an attachment

to this report.] 

The Region recognizes that it has areas needing improvement regarding timely response, and has taken steps to

improve its ability to move facilities through the pipeline in a

more expeditious manner. These changes include: (a) the

use of contractors to provide support during EPA-lead

inspections; (b) monthly Tier 1 Meetings; and (c) the addition

of one full-time employee to conduct inspections and process

enforcement cases. The Region is also looking at shortening

the time frame for receipt of inspection reports from the

Environmental Services Division, and developing a standalone database to track RCRA Enforcement from targeting

through compliance.

Finally, the Region outlined a number of ongoing actions to

focus attention on RCRIS training and establishing data

verification procedures that should improve the quality of

EPA's RCRIS data.

OIG’s Evaluation

of Region III’s

Response

Most of the Region’s responses meet the intent of our

recommendations, but with notable exceptions. We still

recommend that the Region empower inspectors/enforcement

officers to initiate informal enforcement actions to streamline

the enforcement process. We strongly believe that this “best

practice” of the Virginia DEQ has resulted in extremely

timely compliance from the State’s hazardous waste

violators. 

We also believe that shortening the time frame for receipt of 

inspection reports from the Environmental Services Division

by 15 days will not significantly improve the enforcement

process, which currently takes anywhere from several

months to over a year to complete.
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Report No. 1999-P-00215

CHAPTER 4

REGION III TIMELY AND APPROPRIATE LIST

EPA’s Enforcement Response Policy stipulates that a facility

that has received informal enforcement action and remains

out of compliance for 180 days will be classified as a

Significant Non-Complier. Despite this requirement,

Region III allows State Agencies 300 days to consider:

(a) classifying violating facilities as Significant NonCompliers, and (b) initiating formal enforcement action. 

Consequently, facilities can remain non-compliant and

increase the potential for harm to human health and the

environment. 

Region III’s 300-

Day T&A List

Region III maintains a list of facilities that have not

responded to State informal enforcement actions, and that

have been non-compliant for more than 300 days. The

Region forwards this “timely and appropriate” (T&A) list

monthly to each State, and holds quarterly conference calls

to discuss the enforcement status of the facilities. According

to regional personnel these facilities are considered

“potential” Significant Non-Compliers. However, we noted

that Region III and Virginia DEQ rarely classified such

facilities as Significant Non-Compliers at this point. 

As explained in the Enforcement Response Policy, States

with authorized RCRA programs have the primary

responsibility for ensuring compliance with the program

requirements. However, EPA retains the authority to take

independent enforcement action in authorized States in

accordance with Section 3008 (a) (2) of RCRA. Pursuant to

this Section, EPA may take direct action after notice to the

authorized State if the State fails to take timely and/or

appropriate action.
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Report No. 1999-P-00215

Significant NonCompliers on the

FY 1997 T&A Lists

We randomly selected for review the files for 92 facilities

inspected by three Virginia DEQ offices. Of these 92

facilities, there were 19 facilities on the Region’s fiscal year

1997 T&A lists. Of these 19 facilities, 6 met the criteria for

Significant Non-Complier classification. Although formal

enforcement actions were taken in most cases, these actions

were untimely. The following table shows the six facilities

that were on the fiscal year 1997 T&A lists that met

Significant Non-Complier criteria.

FACILITY

NUMBER OF

VIOLATIONS

 DAYS OUT OF

COMPLIANCE

DATE OF

T&A LIST

Case VA12 7 1,749 11/01/96

Case VA07 1 1,022 03/30/98

Case VA03 4 929 11/01/96

Case VA04 13 929 11/01/96

Case VA10 5 644 11/01/96

Case VA08 6 411 11/01/96

Case VA12 was discussed in Chapter 2, as it was classified

by Virginia DEQ as a Significant-Non-Complier. The

following are summaries of the events related to the

remaining T&A cases from our sample, and which we believe

should have also been classified as Significant NonCompliers (or High Priority Violators as defined in the 1987

Enforcement Response Policy).

Case VA07

This facility was 1,022 days out of compliance according to

the T&A list. The violation, being an unpermitted storage

facility for hazardous waste, resulted from an inspection

DEQ conducted in December 1994. Because this violation

was deemed major (“Class 1”), DEQ should have classified

the facility as a “High Priority Violator” and initiated formal

enforcement action by April 30, 1995. Instead, DEQ did not
27

Report No. 1999-P-00215

initiate a formal enforcement action until August 1997,

which the facility did not agree to sign until April 1998, over

three years after the original inspection.

Case VA03

This facility was 929 days out of compliance according to the

T&A list, with four violations found during a DEQ April

1994 inspection. Two of these violations were corrected at

the time of another DEQ inspection in March 1996. Due to

the two violations being unresolved since 1994, the State

should have classified the facility as a Significant NonComplier and initiated formal enforcement action. The

actual Consent Order was eventually issued in June 1997,

over three years after the original inspection. 

Case VA04

This facility was 929 days out of compliance according to the

T&A list, with 13 Class 1 and Class 2 violations found during

a DEQ April 1994 inspection. Five of these violations were

corrected at the time of another DEQ inspection in March

1996. Due to the eight violations being unresolved since

1994, the State should have classified the facility as a

Significant-Non-Complier and initiated formal enforcement

action. The actual Consent Order was eventually issued in

June 1997, over three years after the original inspection. 

Case VA10

This facility was 644 days out of compliance according to the

T&A list, with five violations found during an inspection

DEQ conducted in January 1995. Failing to return to

compliance after DEQ attempted informal enforcement, the

facility should have been classified as a High Priority

Violator in July 1995. Failing that, the facility should have

been classified as a Significant Non-Complier in April 1996,

with the issuance of the revised Enforcement Response

Policy.
28

Report No. 1999-P-00215

Case VA08

This facility was 411 days out of compliance according to the

T&A list, with six violations found during an inspection DEQ

conducted in September 1995. When the State reinspected

the facility in January 1997, it reported that two of the six

violations remained uncorrected. DEQ also reported that

there were several new violations that were similar to those

found during the September 1995 inspection, as well as

during a March 1994 inspection. Based on DEQ’s findings,

this facility should have been classified as a Significant NonComplier. 

Conclusion According to the 1996 Enforcement Response Policy, the

facilities discussed above should have been classified as

Significant Non-Compliers after 180 days of non-compliance. 

However, Region III placed these facilities on the T&A lists

because their non-compliance exceeded 300 days. The use of

the 300-day criteria promotes untimely compliance, because

it does not encourage State Agencies, such as Virginia DEQ,

to make Significant Non-Complier classifications and formal

enforcement decisions at the 180-day mark, as prescribed in

EPA’s 1996 Enforcement Response Policy.

Recommendations We recommend the Region III Administrator:

4.1 Cease the practice of issuing T&A lists to the States

for facilities out of compliance for 300 or more days.

4.2 Institute the practice of issuing T&A lists to the States

for facilities out of compliance at the 180-day mark,

and require the States to make a SNC determination

and take appropriate enforcement action.

Region III’s

Response to

Recommendations

The Region is currently issuing T&A reports to the states for

both 180 and 300 days. The 300-day report allows the states

to track progress towards issuance of final compliance
29

Report No. 1999-P-00215

agreements and compliance orders. As such, the Region

expects to continue providing both reports to the states.

OIG’s Evaluation

of Region III’s

Response

According to EPA’s Enforcement Response Policy, facilities

that have had informal enforcement and remain out of

compliance for more than 180 days should be considered

Significant Non-Compliers and have formal enforcement

initiated against them. This is not currently being

accomplished by Region III. Therefore, our recommendations

remain unchanged. 
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Report No. 1999-P-00215

CHAPTER 5

MISSING RECORDS

Missing Data Region III did not adequately maintain official RCRA

enforcement and compliance files. Specifically, the

contractor responsible for custody of the files was unable to

provide certain documents pertaining to 10 of the 30

facilities in our sample taken from fiscal years 1996 and

1997 inspections conducted by the Region. The missing data

is as follows.

FACILITY NAME & 

FACILITY ID NO.

INSPECTION

DATE

MISSING

DOCUMENTS

AllWaste Container Service

MDD981737521

09/25/96 Inspection

Report

Beltsville Agric. Res. Ctr. West

MD2120500119

09/25/96 Entire File

Beltsville Agric. Res. Ctr. East

MD0120508940

09/25/96 Files after

1990

Pepco Benning Generating Sta.

DCD000819516

04/28/97 Entire File

Anacostia Marina Inc.

DCD983968538

03/04/97 Inspection

Report

St. Elizabeth’s Hospital

DC9751305997

06/03/97 Inspection

Report

USDA National Arboretum

DC7120507432

02/19/97 Inspection

Report

Garage 4134

PAR000016071

01/12/97 Inspection

Report 

Steamtown Nat’l. Historic Site

PAD987285715

04/14/97 Entire File

St. Mary’s Refining Co.

WVD004337135

10/31/96 Inspection

Report 
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Report No. 1999-P-00215

In response to our position papers, the Region explained

that:

Based on discussions with the [contractor name

deleted] file room staff, for files listed as: no

inspection report in file; files did not physically exist

within the file room at the time of the audit since no

information was contained on the specific facilities in

the RCRIS data base. The contractor stated that this

was explained to the IG auditor but the auditor may

not have understood. Additionally, there were some

inspection reports that may not have been entered into

the file room system at the time of the audit.

For files listed as: cannot locate files; a check was

made by the contractor on the site specific files and

there was existing documentation showing who had

signed out the files (PAD987285715 signed out since

3/12/96). The contractor believed this information was

conveyed to the IG auditor during the audit.

The facility that was listed as: missing files after

1990; did not have files after 1990 because these files

were not listed in the RCRIS data base and therefore

did not exist in the file room at the time of the audit.

Regarding missing inspection reports, it should be pointed

out that the universe from which we sampled was RCRIS

information for fiscal years 1996 and 1997 inspections. 

Therefore, if there is data in RCRIS, logic dictates that an

inspection should have been conducted. If there was an

inspection, there should have been an inspection report

placed in the official file and available for review. 

Regarding missing files, on several occasions the custodial

contractor confirmed that there was no record that these files

had been checked out. We repeatedly followed up on this

issue with regional RCRA personnel over a period of months. 

At no time were we informed that the files were available for

our review.
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Report No. 1999-P-00215

The fact remains that it is a prudent business management

practice to maintain adequate custody over official files. 

Region III is paying a contractor to perform this function in

the RCRA File Center. That there was such confusion over

whether documents and files exist or not, indicates that the

controls over these records are inadequate. The contractor

was unable to provide us with a third of the documents

requested. Finally, we would also point out that during our

visits to three individual DEQ offices, we obtained the files

for 146 inspections without incident.

Recommendations We recommend the Region III Administrator:

5.1 Establish adequate custody controls over official

RCRA files.

5.2 Conduct a management review of the contractor

responsible for the RCRA file room.

Region III’s

Response to

Recommendations

Region III concurs with our recommendations and will

undertake a review to determine where these breakdowns

have occurred. In addition, it already has a plan in place to

update all enforcement file information over the next six

weeks. 

OIG’s Evaluation

of Region III’s

Response

EPA’s response meets the intent of our recommendations. 

We ask that the Region provide us a copy of the results of its

review in order that we may close out this issue.
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Report No. 1999-P-00215

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Report No. 1999-P-00215

APPENDIX A

GLOSSARY
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37

Report No. 1999-P-00215

Glossary

CEI – Compliance Evaluation Inspection.

Class 1 Violation – The most serious type of RCRA violation, which is a deviation

from regulations or provisions of formal enforcement orders.

Class 2 Violation – Any violation of a RCRA requirement that does not meet the

criteria for Class I violations.

DEQ – For the purposes of this report, Virginia’s Department of Environmental

Quality.

ERP – Enforcement Response Policy. Provides guidance for classifying violations,

selecting appropriate enforcement action in response to various RCRA violators,

and for taking Federal enforcement action in States with authorized programs.

Generator – Any person or business that produces hazardous waste or first causes

hazardous waste to become subject to RCRA regulations.

Hazardous Waste – Wastes that meet EPA’s definition for solid waste and possess

the characteristics of ignitability, corrosivity, reactivity, or toxicity (as defined by

RCRA).

HPV – High Priority Violator. A category of violator that merits the most stringent

and immediate enforcement response. It is the 1987 ERP equivalent of a SNC for

which formal enforcement was required within 135 days of the inspection. 

NVRO – Northern Virginia Regional Office of the Virginia DEQ, which is located in

Woodbridge, VA.

Permit – An official license that specifically allows a facility to treat, store, or

dispose of hazardous waste and outlines the precautions that must be taken to

manage the waste in a manner that adequately protects human health and the

environment.

Regulatory Agency – Either the EPA or State Agencies that are responsible for

implementing, monitoring, and enforcing the RCRA program.
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Report No. 1999-P-00215

RCRA – Resource Conservation and Recovery Act. This Congressional Act

encourages environmentally sound methods for disposal of household, municipal,

commercial, and industrial waste.

RCRIS – Resource Conservation and Recovery Information System. The national

RCRA information system used by EPA for program management, regulation

development, and regulation enforcement. 

SNC – Significant Non-Complier. The 1996 ERP classification which is used for

the most serious RCRA violators. 

State Authorization – The process by which States are given authority to run the

RCRA program instead of EPA.

Subtitle C – The section of RCRA which establishes a regulatory framework for

managing the generation, storage, treatment, and disposal of certain wastes defined

as hazardous.

T&A List – A list of RCRA facilities which have not responded to State informal

enforcement actions and have been non-compliant for more than 300 days.

TIER I – The Region III quarterly meeting, which is held to determine the

appropriate enforcement action to take against RCRA violators. 

TRO – Tidewater Regional Office of the Virginia DEQ, which is located in Virginia

Beach, VA.

TSDF – Treatment, Storage and Disposal Facility. Facilities that receive

hazardous waste from generators or other facilities for treatment, storage or

disposal of waste.

WCRO – West Central Regional Office of the Virginia DEQ, which is located in

Roanoke, VA.
39

Report No. 1999-P-00215

APPENDIX B

Region III’s Response to Draft Report
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August 9, 1999

SUBJECT: Response to Draft Audit Report on RCRA Identification

and Enforcement of Significant Non-Compliers

FROM: W. Michael McCabe

Regional Administrator (3RA00)

TO: Carl A. Jannetti

Divisional Inspector General for Audit (3AI00)

Thank you for the opportunity to provide comments on the above referenced

document. The draft audit report identifies several problem areas that we have

recognized as areas of concern and have already taken steps that should resolve or limit

the reoccurrence of the issues that you have raised. Our comments are as follows:

Response to Recommendations 2.1 to 2.3

Chapter 2 recommends that Virginia Department of Environmental Quality

(DEQ) should adhere to the procedures for identifying Significant Non-Compliers (SNC)

and take appropriate action as outlined in EPA's Enforcement Response Policy (ERP),

that DEQ escalate to formal enforcement when a facility is recalcitrant (rather than

continue compliance assistance) and DEQ be aware of how to refer potential Superfund

candidates to Region III. We agree with these recommendations in that we, along with

the Office of Enforcement, Compliance and Environmental Justice, have been working

with DEQ to review and finalize DEQ's ERP such that it is equivalent to EPA's.

With regard to escalation of enforcement actions, please recognize that many of

Region III states (including Virginia) do not have the ability to issue unilateral

complaints and therefore must rely on negotiated settlements for the majority of their

formal enforcement actions. Furthermore, some are required to exhaust all

administrative (informal) options before they can consider a referral to the state's

Attorney General's Office. As a result of these procedural restraints, we have allowed

the states the full 300 days provided for in the ERP to negotiate final administrative

orders that return the violating facility to compliance.

Virginia has indicated that its staff is aware of when and who to contact at EPA

when it believes it has a facility that may require action under Superfund. The DEQ,

however, was previously unaware that EPA must record the referral to Superfund in

Resource Conservation and Recovery Information System (RCRIS) to have the facility

removed from the Timely and Appropriate (T&A) list.
Response to Recommendations 3.1 to 3.5

Chapter 3 identifies four (4) facilities where the Region did not "appropriately"

classify facilities as Significant Non-Compliers and did not take "timely" enforcement

action. These are areas that the Waste and Chemicals Management Division has also

identified as areas of concern. We recognize the importance of properly classifying

facilities that warrant a SNC determination and the need to take timely enforcement

actions. As such, we have taken actions to correct these perceived weaknesses in the

program. To ensure that SNC determinations are made for facilities that warrant such

a determination, we have included questions in our Tier I screening form that will

assist the Tier I Screening Panel in determining whether a facility has caused an actual

exposure or if there is a substantial likelihood of exposure to hazardous waste or

hazardous waste constituents; are chronic or recalcitrant violators or have deviated

substantially from the terms or requirements of a permit, order or from RCRA

statutory or regulatory requirements (see attached screening form). Once a

determination is made whether a facility should be classified as a Significant NonCompliers Yes or Significant Non-Compliers No, these designations will be updated in

RCRIS within five working days.

Regarding timely response, we recognize that we have some areas that need

improvement and we have taken steps to improve our ability to move facilities through

the pipeline in a more expeditious manner. Some of the changes we have made include:

T Use of contractors to provide support during EPA-lead inspections. Contractors

provide support to RCRA staff when they conduct inspections. This allows the

staff to conduct more inspections and/or perform and prepare inspection reports

in a more timely manner.

T Tier I Meetings have been held on a monthly basis since approximately March

1998. This has allowed us to screen cases on a more frequent basis, thereby

shortening the time required to make an enforcement response recommendation.

T In December 1998, we added one additional FTE to the Branch in the Wheeling

Office. In addition to allowing the Region to have a greater presence in the

western part of the Region, this additional FTE will provide an additional

resource that can conduct inspections and process enforcement cases, thus

leading to a more timely response.

Others areas where we are looking to improve include:

T Shortening the time frame in which inspection reports are received from the

Environmental Services Division (ESD). Over the past fiscal year, the RCRA

program received inspection reports from ESD approximately 45-60 work days

after the inspection date. We have signed a work plan with ESD's Office of

Environmental Programs that requires that inspection reports be submitted to
1

 This FTE was filled for approximately 1 month but has since become vacant and the division’s FTE

cap has prevented us from backfilling this position at this time.

the RCRA Enforcement Program within 45 calendar days after the completion of

the inspection.

T We have developed a separate stand-alone data base that will allow us to track

the entire RCRA Enforcement Pipeline from targeting through completion of

compliance tasks required as a result of compliance orders. The system has

built-in tickler dates that will facilitate tracking of time frames described in the

ERP.

Regarding your recommendation that RCRA personnel receive RCRIS training

and that we establish data verification procedures, we recognize that this is an area

where we need to focus additional attention and have a number of actions ongoing

(some of which have already been described above) that should improve the quality of

EPA's RCRIS data. We now have a fully trained Senior Environmental Employment

Program person on board who is responsible for our inspection and program tracking

data and have dedicated an additional FTE as an Enforcement Program Manager that

would allow us to improve our oversight of the state data.1 We also have provided

RCRIS data entry training to each Compliance Officer at the end of fiscal years 1996,

1997, and 1998. We hope to extend this training to all data entry personnel to ensure

that the likelihood of a reoccurrence of data errors is minimized.

The examples that your audit found regarding violations unrecorded in RCRIS

are likely also the result of the enforcement staff not being able to substantiate

violations reported by the inspector. It is very common for the inspector to record

potential violations in their inspection reports that the enforcement staff cannot verify

or backup with the necessary evidence to prove a violation. Because of this, the

violations entered in RCRIS may not match the initial violations described in the

inspection report.

Response to Recommendations 4.1 and 4.2

Chapter 4 recommends that Region III cease issuing Timely and Appropriate

(T&A) reports to states for facilities out of compliance for 300 days or more and instead

issue T&A reports which identify those out of compliance facilities at the 180 day mark. 

We are currently issuing T&A reports to the states for both 180 and 300 days. The 300

day report allows the states to track progress towards issuance of final compliance

agreements and compliance orders. As such, we expect to continue providing both

reports to the states.
Response to Recommendations 5.1 and 5.2

Chapter 5 recommends that the Region establish adequate custody controls over

official RCRA files and conduct a management review of the contractor responsible for

the RCRA file room. We agree with these recommendations and will undertake a

review to determine where these breakdowns have occurred. In addition, we already

have a plan in place to update all enforcement file information over the next six weeks. 

Since the time of the audit, there have been very few complaints received about staff

inability to access facility files.

Conclusion

In summary, we have recognized many of the areas pointed out in the draft audit

report as matters that need to be addressed and have taken action to correct them. 

Also, we have provided several clarifications which we hope you will incorporate into

your final report. If you have any questions regarding these comments, please contact

either Jim Webb at (215) 814-3169 or Harry Daw at (215) 814-3244 of my staff. Again,

thank you for the opportunity to provide our comments.

Attachment

cc: Tom Voltaggio (3DA00)

James Webb (3WC30)

Harry Daw (3WC31)

Mary Coe (3RC30)

Bill Early (3RC00)

Samantha Fairchild (3EC00)

Richard Pepino (3ES30)
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Report No. 1999-P-00215

APPENDIX B

Virginia DEQ’s Response to Draft Report
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August 9, 1999

Mr. Carl A. Jannetti

Division Inspector General for Audit

United States Environmental Protection Agency

Office of Inspector General

Mid-Atlantic Division

1650 Arch Street

Philadelphia, PA 19103-2029

Dear Mr. Jannetti:

Thank you for the opportunity to review the draft audit report on "RCRA

Identification and Enforcement of Significant Non-Compliers," covering the federal

fiscal years 1996 and 1997. We are pleased that your report recognized the

appropriateness of DEQ's enforcement actions and the knowledge of our staff. We also

appreciate your recognition of DEQ's empowerment of inspectors and enforcement

specialists as a "best practice" for others to follow.

While DEQ may have differences of opinion or perspective regarding positions of

the report, we have addressed or are in the process of addressing each of the

recommendations to assure that all hazardous waste violations are properly classified

and handled. DEQ will continue to work with EPA Region III to assure that the

recommendations are fully implemented. Attached are specific responses to each of the

recommendations.

Very truly yours,

Dennis H. Treacy

Enclosure
Department of Environmental Quality

RCRA Identification and Enforcement of Significant Non-Compliers

Office of Inspector General - Draft Audit Report - June 30, 1999

Recommendations and Responses

Recommendations: We recommend that the Region III Administrator ensure that the

Virginia DEQ:

2.1 Adheres to the EPA Enforcement Response Policy; specifically, establish procedures

for identifying Significant Non-Compliers, and take appropriate enforcement

actions to ensure their timely return to compliance.

DEQ Response: Procedures for designating facilities as Significant Non-Compliers

(SNCs) are in place in DEQ Regional Offices, which have been delegated authority

over compliance and enforcement cases. Those offices have reviewed their pending

hazardous waste cases to confirm that violators have been designated as SNCs in

accordance with those procedures. In its current revision of the Enforcement

Manual, Virginia DEQ has established procedures for identifying SNCs, and for

taking appropriate enforcement actions to ensure their timely return to compliance,

consistent with EPA's Hazardous Waste Civil Enforcement Response Policy. DEQ

has provided EPA a copy of the current revision for information and comment. It

is DEQ's intent that adherence to the Enforcement Manual will ensure timely

return to compliance in accordance with EPA's expectations.

2.2 Escalate to formal enforcement when a facility is recalcitrant, rather than continue

"compliance assistance."

DEQ Response: It is DEQ's policy to escalate the enforcement activities when a

facility is recalcitrant and to reach a prompt conclusion to enforcement actions. The

draft Enforcement Manual establishes guidance and procedures to ensure that

cases involving recalcitrant facilities are escalated to formal enforcement in a timely

manner. Compliance assistance remains an important part of DEQ's efforts to

assure consistent compliance among the regulated community. However, when a

facility is recalcitrant, or when the environment or public health is at risk, DEQ will

escalate such cases to formal enforcement. The current revision of the Enforcement

Manual has been provided to EPA for information and comment.

2.3 Is aware how to refer facilities as possible Superfund candidates to Region III.

DEQ Response: DEQ maintains an Office of Remediation Programs (ORP) that

handles Superfund and other remediation issues and that continuously interacts

with the Superfund staff in EPA Region III. Sites are referred through the ORP (or

through the Virginia Department of Emergency Services) as possible candidates for

Superfund response action. Indeed, in July 1999, three sites were added to the final

list of sites on the National Priorities List. In addition, the procedure for site

evaluations under the Virginia Solid Waste Management Regulations specifically
recognizes that sites with releases of hazardous substances may warrant federal

involvement.

To ensure that the staff are aware of the procedures for potential Superfund

involvement, DEQ has conducted cross-training for ORP and RCRA staff in

hazardous waste and Superfund issues. ORP is conducting additional training for

the staff in all media programs in each of the six DEQ Regional Offices.
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51

Report No. 1999-P-00215

APPENDIX C

DISTRIBUTION

Office of Inspector General

Office of Inspector General (2421)

Divisional Office of Inspectors General

EPA Region III

Regional Administrator (3RA00)

Director, Waste and Chemicals Management Division (3WC00)

Director, Environmental Services Division (3ES00)

Chief, Grants and Audit Management Branch (3PM70)

Headquarters

Agency Audit Follow-up Coordinator (2724)

Agency Follow-up Official (2710)

Agency Audit Liaison (2201A)

Assistant Administrator for Enforcement and Compliance Assurance (2201A)

Assistant Administrator for Solid Waste and Emergency Response (5101)

Associate Administrator for Congressional and Intergovernmental Relations (1301)

Associate Administrator for Communications, Education, and Media Relations (1701)

Other

Virginia Department of Environmental Quality

General Accounting Office
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