Office of Inspector General 

Central Audit Division 

Audit Report 

Resource Conservation and 

Recovery Act 

Appropriate Violator Classifications and Timely Initial 

Enforcement Actions Would Strengthen Montana’s 

RCRA Enforcement Program 

Report No. 000762-2001-P-00004 

March 28, 2001 
EPA Inspector General Division 

Conducting the Audit: 

EPA Region Covered: 

EPA Program Offices Involved: 

Montana Department of 

Environmental Quality Program 

Offices Involved: 

Audit Conducted by: 

Central Audit Division 

Denver, Colorado 

Region 8 

Enforcement, Compliance, and 

Environmental Justice, Denver, Colorado 

Montana Operations Office, Helena, 

Montana 

Permitting and Compliance Division, Air 

and Waste Management Bureau 

Enforcement Division, Helena, Montana 

Erin Barnes 

Larry Dare 

Thomas Herrod 

Kim Victor 
March 28, 2001 

MEMORANDUM 

SUBJECT: Appropriate Violator Classifications and Timely Initial Enforcement Actions 

Would Strengthen Montana’s RCRA Enforcement Program 

Report No. 000762-2001-P-00004 

FROM: Kimberly Victor 

Acting Audit Manager 

Denver Office 

TO: Jack McGraw 

Acting Regional Administrator 

Region 8 

Attached is our report entitled, Appropriate Violator Classifications and Timely Initial 

Enforcement Actions Would Strengthen Montana’s RCRA Enforcement Program. The report 

includes recommendations to improve Montana’s Resource Conservation and Recovery Act 

compliance monitoring and enforcement program, as well as Region 8's data in its oversight 

inspection and enforcement information system. We discussed our findings with your staff and 

Montana’s staff, issued a draft report, and held an exit conference with your staff on March 14, 

2001, and with Montana’s staff on February 22, 2001. We summarized your comments in the 

final report and included your complete response in Appendix I. 

We appreciate the cooperation your staff showed us and the assistance they provided 

throughout the audit. The staff exhibited a genuine interest in working with us to identify ways to 

improve Montana’s RCRA enforcement program and helped add value to this audit. 

Action Required 

In accordance with the Environmental Protection Agency's (EPA) Order 2750, you, as the 

action official, are required to provide this office with a written response within 90 days of the 

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

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

We have no objection to the release of this report to any member of the public. This 

report contains findings that the Office of Inspector General (OIG) has identified and corrective 
actions OIG recommends. This audit report represents the opinion of OIG and the findings in this 

report do not necessarily represent the final EPA position. Final determinations on matters in this 

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

procedures. 

If you have any questions, please call me at (303) 312-6629. Please refer to report 

number 000762-2001-P-00004 on any correspondence. 

Attachment 
Appropriate Violator Classifications and Timely Initial Enforcement 

Actions Would Strengthen Montana's RCRA Enforcement Program 

EXECUTIVE SUMMARY 

INTRODUCTION The objective of the Resource Conservation and Recovery 

Act (RCRA) is to ensure that hazardous waste is handled in 

a protective manner. Congress intended for states to assume 

primary responsibility for implementing hazardous waste 

regulations with oversight from the federal government. As 

part of the compliance monitoring and enforcement 

component of a hazardous waste program, the 

Environmental Protection Agency (EPA) and/or state staff 

conduct inspections, take enforcement actions, and assess 

penalties. To attain and maintain a high rate of compliance, 

EPA and state RCRA programs should address the most 

serious violators with timely, visible, and effective 

enforcement actions. For this audit, we reviewed inspection 

and enforcement actions for 47 out of 113 facilities with 

violations identified during fiscal 1997 through 1999 to 

determine whether Montana’s Department of Environmental 

Quality (MDEQ) and EPA Region 8 took timely and 

appropriate enforcement actions. Region 8 authorized 

MDEQ for the RCRA base program. Therefore, MDEQ had 

lead responsibility to issue permits, monitor compliance, and 

enforce most of the significant RCRA requirements in 

Montana. Region 8 had oversight responsibility for those 

portions of RCRA that MDEQ received authorization. 

OBJECTIVES Our overall objective was to determine whether EPA 

Region 8's and Montana’s RCRA compliance monitoring and 

enforcement program complied with the RCRA enforcement 

response policy and the Region 8-MDEQ enforcement 

agreement. We sought to answer the following specific 

questions: 

• Did violator classifications and enforcement actions 

comply with EPA's hazardous waste enforcement 

response policy? 

• Did enforcement actions return violators to compliance 

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Actions Would Strengthen Montana's RCRA Enforcement Program 

and was that return to compliance timely and 

documented? 

• Did penalty calculations comply with the RCRA civil 

penalty policy and the State's penalty policy? 

• Was accurate data recorded in the Resource 

Conservation and Recovery Act Information System 

(RCRIS)? 

RESULTS IN BRIEF MDEQ did not always appropriately classify violators or 

initiate timely enforcement actions in accordance with its 

enforcement agreement with Region 8. MDEQ did not 

appropriately classify violators in 9 of 47 cases. Also, 

MDEQ initiated untimely enforcement actions in 15 of 16 

formal enforcement cases. Additionally, in 13 of 15 cases 

where MDEQ sought penalties against non-compliant 

facilities, MDEQ’s penalty calculations did not comply with 

state or federal policy. Finally, while MDEQ staff generally 

recorded accurate data in RCRIS, the Department did not 

consistently record penalty information into RCRIS, and 

Region 8 staff did not adequately update RCRIS. 

MDEQ’s inappropriate violator classifications, untimely 

initial enforcement actions, and inconsistently documented 

penalty decisions occurred because MDEQ did not always 

utilize EPA guidance or adequately balance compliance 

assistance with enforcement. MDEQ could have benefitted 

from more effective case monitoring, a more collaborative 

internal team approach, and adequately documenting its 

RCRA activities in the facility files. As a result, Montana 

facilities did not always return to compliance as quickly as 

possible, and these delays could have increased the potential 

for harm to human health and the environment. 

We recommended that the Regional Administrator require 

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RECOMMENDATIONS MDEQ to comply with its new consolidated cooperative 

enforcement agreement. The Regional Administrator also 

should require that MDEQ escalate chronic or recalcitrant 

facilities for formal enforcement action rather than continue 

compliance assistance. Additionally, the Regional 

Administrator should require MDEQ to fully calculate and 

document its penalties against serious violators, as well as 

adequately document the Department’s violator 

classifications and a facility’s return to compliance. The 

Regional Administrator should work with MDEQ to modify 

its enforcement compliance information system for 

prioritizing the Department’s enforcement requests and 

monitoring case progress, and support MDEQ efforts in 

implementing divisional cross-training and informationsharing plans. 

AGENCY AND STATE 

COMMENTS AND 

OIG EVALUATION 

Region 8 officials agreed with the findings and 

recommendations. Regional staff provided comments to 

clarify portions of the report, and we have incorporated these 

comments and modified the report as appropriate. We have 

summarized the Region’s comments at the end of chapter 2 

and have included its complete response in Appendix I. 

MDEQ officials generally did not agree with our findings and 

conclusions. We considered MDEQ’s comments and 

modified the report as appropriate. We have summarized 

MDEQ’s comments at the end of chapter 2. 

iii Report No. 000762-2001-P-00004 
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TABLE OF CONTENTS 

Page 

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

CHAPTERS 

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

PURPOSE ................................................... 1

BACKGROUND .............................................. 2

SCOPE AND METHODOLOGY ................................. 6

PRIOR AUDIT COVERAGE .................................... 7

2. MDEQ NEEDED TO MORE APPROPRIATELY CLASSIFY VIOLATORS 

AND INITIATE TIMELY ENFORCEMENT ACTIONS ...................... 10

ENFORCEMENT AGREEMENT REQUIREMENTS .................. 10

VIOLATOR CLASSIFICATIONS AND ENFORCEMENT DECISIONS 

DID NOT ALWAYS FOLLOW POLICY ......................... 12

INITIAL FORMAL ENFORCEMENT ACTIONS WERE NOT TIMELY . . 15

PENALTY CALCULATIONS DID NOT COMPLY WITH POLICY ...... 17

REGION 8 RCRIS DATA ENTRY NEEDED IMPROVEMENT ......... 18

IMPROVEMENTS NEEDED TO STRENGTHEN MDEQ'S RCRA

ENFORCEMENT PROGRAM ................................. 19

CONCLUSION ............................................... 33

RECOMMENDATIONS ........................................ 34

AGENCY AND STATE COMMENTS AND OIG EVALUATION ......... 35

EXHIBITS 

1. SCOPE AND METHODOLOGY ....................................... 39

2. PRIOR AUDIT REPORTS ............................................ 42

3. VIOLATOR CLASSIFICATIONS ...................................... 43

4-A. TIMELINESS OF VIOLATION DISCOVERY UNDER EPA’S 1987

ENFORCEMENT RESPONSE POLICY ................................ 46

4-B. TIMELINESS OF DECISIONS TO TAKE FORMAL ENFORCEMENT ACTIONS

UNDER MONTANA’S 1999 ENFORCEMENT RESPONSE MANUAL ........ 47

4-C. TIMELINESS OF DECISIONS TO TAKE FORMAL ENFORCEMENT ACTIONS

UNDER EPA’S 1996 ENFORCEMENT RESPONSE POLICY ............... 48

5. COMPARISON OF FORMAL ENFORCEMENT ACTIONS USING 1987, 1996,

AND 2000 POLICIES ............................................... 49

iv Report No. 000762-2001-P-00004 
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Actions Would Strengthen Montana's RCRA Enforcement Program 

6. HIGH PRIORITY VIOLATOR PENALTY CALCULATIONS THAT DID 

NOT MEET POLICY REQUIREMENTS ............................... 52

APPENDICES 

I. AGENCY RESPONSE ............................................... 54

II. ABBREVIATIONS .................................................. 68

III. DISTRIBUTION .................................................... 69

v Report No. 000762-2001-P-00004 
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Actions Would Strengthen Montana's RCRA Enforcement Program 

CHAPTER 1 

INTRODUCTION 

PURPOSE Protecting the public and the environment from risks posed 

by violations of hazardous waste requirements is basic to 

the Environmental Protection Agency’s (EPA) mission. One 

of EPA’s goals in its 1997 Strategic Plan is to ensure full 

compliance with laws intended to protect human health and 

the environment. The Resource Conservation and Recovery 

Act (RCRA) was designed to protect the public and the 

environment from risks associated with improper 

management of hazardous wastes. To attain and maintain a 

high rate of compliance, EPA and state RCRA programs 

should address the most serious violators with timely, 

visible, and effective enforcement actions. Our overall 

objective was to determine whether EPA Region 8's and 

Montana’s RCRA compliance monitoring and enforcement 

program complied with the RCRA enforcement response 

policy and the Region 8-Montana enforcement agreement. 

We sought to answer the following specific questions: 

• 

• 

• 

• 

Did violator classifications and enforcement actions 

comply with EPA's hazardous waste enforcement 

response policy? 

Did enforcement actions return violators to compliance 

and was that return to compliance timely and 

documented? 

Did penalty calculations comply with the RCRA civil 

penalty policy and the State's penalty policy? 

Was accurate data recorded in the Resource 

Conservation and Recovery Act Information System 

(RCRIS)? 

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BACKGROUND 

EPA's Credible Deterrent Goal 

Within its 1997 Strategic Plan, 

EPA established a goal to ensure 

full compliance with laws intended 

to protect human health and the 

environment. This goal includes 

the following EPA objectives: 

• Identify and reduce significant 

non-compliance in high 

priority program areas, while 

maintaining a strong 

enforcement presence in all 

regulatory program areas, and 

• Promote the regulated 

community’s voluntary 

compliance with 

environmental requirements 

through compliance 

incentives and assistance 

programs. 

Compliance Monitoring and 

Enforcement Program Goals 

for Region 8 and Its States 

as stated in the joint standard 

operating procedure 

• To detect and deter 

violations through 

inspections and 

enforcement actions. 

• To promote compliance with 

hazardous waste 

requirements to protect 

public health and the 

environment from future 

violations. 

Improper management of hazardous waste poses a serious 

threat to human health and the environment. Congress 

enacted RCRA in 1976 which established, under Subtitle C, 

a framework to manage hazardous wastes from generation 

to disposal. The objective of RCRA’s Subtitle C program is 

to ensure that hazardous waste is handled in a protective 

manner. Most facilities that treat, store, and dispose of 

hazardous waste must have permits. 

Congress intended for the states to assume primary 

responsibility for implementing hazardous waste regulations 

with oversight from the federal government. To become 

authorized to implement and enforce hazardous waste 

regulations, a state must develop and submit for approval a 

hazardous waste program that is equivalent to and 

consistent with the federal program and provides adequate 

enforcement. However, EPA retains full enforcement 

authority and oversight responsibilities. 

In Region 8, much of the hazardous waste program under 

RCRA is administered by authorized states, while the 

Region retains significant responsibilities for assuring 

effective programs. Region 8 and its six states jointly 

developed a standard operating procedure for overseeing 

state hazardous waste compliance monitoring and 

enforcement programs. The standard operating procedure 

document includes policy statements, identifies program 

criteria subject to oversight, defines performance levels for 

those criteria, and designates corresponding oversight levels 

and procedures. 

In fiscal 1999, Region 8 introduced its Uniform 

Enforcement Oversight System, designed to evaluate state 

enforcement and compliance performance. The objective of 

this new system is to strengthen state programs and reward 

strong programs with reduced oversight. The system is 

composed of both quantitative scoring and narrative 

feedback. In fiscal 1999, Region 8 began using the results 

of the oversight system to conduct joint annual planning 

with states and to manage the Region’s limited oversight 

resources. 

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Enforcement Action 

The goal of the RCRA compliance monitoring and 

enforcement program is to attain and maintain a high rate of 

compliance by the regulated community. To accomplish 

this goal, EPA and/or state staff conduct inspections, take 

enforcement actions, and assess penalties. An appropriate 

enforcement action will help to achieve a timely return to 

compliance and serve as a deterrent by eliminating any 

economic advantage received by a violator through noncompliance. Montana Department of Environmental 

Quality (MDEQ) officials indicated that they did not adopt 

EPA’s goals, and rather had separate goals for its hazardous 

waste inspection and enforcement programs. 

EPA’s Enforcement Response Policy discusses timely and 

appropriate RCRA enforcement actions. EPA issued the 

first enforcement response policy in December 1984, 

modified the policy in December 1987, and revised it again 

in 1996. The enforcement response policy establishes the 

criteria for determining appropriate types of enforcement 

responses and violator classifications to ensure consistent 

RCRA enforcement nationwide. The 1996 enforcement 

response policy replaced all prior criteria. 

The 1996 enforcement response policy classifies violators 

into two categories: significant noncompliers and other 

secondary violators. The 1996 enforcement response policy 

defines significant noncompliers 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 from RCRA 

statutory or regulatory requirements. 

In contrast, the 1987 enforcement response policy 

designated three classifications of violators: high priority 

violator, medium priority violator, and low priority violator. 

The definition of a high priority violator was essentially the 

same as the definition of a significant noncomplier in the 

1996 enforcement response policy. In this report, we will 

3 Report No. 000762-2001-P-00004 
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generally use the term high priority violator, rather than the 

1996 enforcement response policy term significant 

noncomplier because MDEQ used the definitions in the 

1987 enforcement response policy. 

In addition to categorizing a facility, the 1987 enforcement 

response policy also classifies individual facility violations 

into one of two classes – Class I or II. Class I violations are 

the more serious of the two and consist of deviations from 

regulations, permit conditions, or other binding agreements 

that could result in the failure to assure proper treatment, 

storage, disposal, or emergency cleanup of hazardous waste 

or prevent and detect hazardous waste releases. Class II 

violations are those that do not meet Class I criteria. The 

enforcement response policy defines a chronic or 

recalcitrant facility as one regularly found to have many 

Class I or II violations (even if minor in themselves) or one 

that fails to quickly correct previous violations. 

An enforcement response may be either a formal or informal 

action: 

(1) Formal enforcement may take the form of an 

administrative order, civil lawsuit, or criminal 

lawsuit. A monetary penalty may be 

imposed. According to EPA's policy, formal 

enforcement is appropriate for high priority 

violators. 

(2) An informal enforcement response is the 

minimally appropriate enforcement action for 

a violator that does not meet the significant 

noncomplier or high priority violator 

definition. 

An informal enforcement action generally involves 

notification and does not include economic sanctions. 

However, a facility that does not return to compliance 

following an informal enforcement response should be 

reclassified as a high priority violator and receive a formal 

enforcement response and penalty. 

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MDEQ Organization 

MDEQ Hazardous Waste 

Program Goals 

To assure regulatory compliance by 

conducting regular comprehensive 

compliance evaluation inspections at 

those installations that offer the 

greatest threat to public health and 

the environment. 

To provide technical and compliance 

assistance to hazardous waste 

handlers in order to maintain and 

enhance regulatory compliance. 

To initiate enforcement actions which 

are commensurate with the degree of 

non-compliance and which considers 

a violator’s past compliance history. 

Region 8 maintains a field office in Helena, Montana, which 

implements and oversees the Region’s programs and 

strategic priorities throughout Montana. Region 8's Helena 

office includes three staff who, in addition to other duties, 

oversee MDEQ’s RCRA compliance monitoring and 

enforcement program. 

Region 8 authorized MDEQ for the RCRA base program. 

Therefore, MDEQ had lead responsibility to issue permits 

(except for corrective action), monitor compliance, and 

enforce most of the significant RCRA requirements in 

Montana. Region 8 had oversight responsibility for those 

portions of RCRA that Montana received authorization. 

MDEQ was not yet authorized for RCRA corrective action 

or the land disposal restriction provisions, and was not 

authorized to implement RCRA in Indian country. Until 

December 26, 2000, when the Region authorized MDEQ 

for the corrective action component of RCRA, Region 8's 

Helena office had the lead for implementing corrective 

action. Region 8's Helena office also implemented all 

provisions of RCRA in Indian country. 

In Montana, RCRA inspections and enforcement actions are 

conducted by MDEQ staff. Staff in the air and waste 

management bureau within the permitting and compliance 

division conduct RCRA inspections and informal 

enforcement, while staff in the enforcement division conduct 

formal enforcement actions. MDEQ was created in 1995 

through a reorganization of three different environmental 

and natural resource agencies. Prior to the reorganization, 

compliance staff were directly responsible for working with 

legal staff to develop enforcement cases, determine 

penalties, and achieve final case resolution. Following the 

reorganization, compliance staff request formal enforcement 

actions through MDEQ’s enforcement division. 

Enforcement division staff are responsible for determining 

penalty amounts and proceeding with formal enforcement 

actions. 

5 Report No. 000762-2001-P-00004 
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Actions Would Strengthen Montana's RCRA Enforcement Program 

Enforcement Agreement 

SCOPE AND 

METHODOLOGY 

MDEQ's Enforcement Response Manual, dated October 25, 

1999, identifies the common protocols, procedures, and 

forms used by MDEQ in fulfilling its compliance assistance 

and enforcement responsibilities. The manual states that 

MDEQ's specific enforcement responses and time frames 

should follow those negotiated in the State’s enforcement 

agreement with Region 8. MDEQ’s enforcement response 

manual states that the enforcement division must receive a 

completed and approved enforcement request from program 

staff prior to initiating a formal enforcement action. 

The RCRA enforcement agreement between Region 8 and 

Montana, dated December 1993, cites the timely and 

appropriate enforcement criteria contained in the 1987 

enforcement response policy as the guidance that MDEQ 

should use for its RCRA compliance monitoring and 

enforcement program. MDEQ and Region 8 did not 

renegotiate a new agreement to incorporate timely and 

appropriate enforcement criteria contained in the revised 

1996 enforcement response policy. MDEQ and Region 8 

continued to use the 1993 enforcement agreement until the 

two agencies signed a new agreement in 2000. 

In September 2000, both agencies signed a consolidated 

cooperative enforcement agreement that incorporated five 

different programs, including RCRA, into one multi-media 

enforcement agreement. This 4-year agreement included 

new time frames and criteria different from those in the 

1987 and 1996 enforcement response policies, and in 

MDEQ’s 1993 enforcement agreement. This pilot 

agreement standardized terminology and created a uniform 

timeline for all five media programs. 

We performed our audit in accordance with Government 

Auditing Standards (1994 Revision) issued by the 

Comptroller General of the United States. We conducted 

our fieldwork from February through November 2000. 

6 Report No. 000762-2001-P-00004 
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We performed our fieldwork at MDEQ and Region 8. 

We reviewed case files for 47 out of 113 facilities in 

Montana that had violations identified in RCRIS during 

fiscal 1997 through 1999 to determine whether MDEQ and 

Region 8 officials took timely and appropriate enforcement 

actions. We discussed the facility files and other program 

activities with MDEQ and Region 8 staff and evaluated the 

internal controls over the inspection and enforcement 

processes. Because Region 8 authorized MDEQ for the 

RCRA base program, MDEQ led the inspections and 

enforcement actions at the 47 facilities and Region 8 acted 

in an oversight role. We did not include any facilities in 

Indian country as part of our scope. 

Although we used the 1993 enforcement agreement as the 

primary criteria document, we also evaluated MDEQ's 

performance against the 1996 enforcement response policy, 

MDEQ's 1995 penalty policy, MDEQ's 1999 enforcement 

response manual, and the 2000 consolidated cooperative 

enforcement agreement. We recognize that Region 8 did 

not require MDEQ to comply with the 1996 policy. 

However, we wanted to analyze how timely MDEQ would 

have been had it used the more lenient time frames in the 

1996 policy. In addition, we wanted to evaluate how timely 

MDEQ would have been if it tried to comply with the new 

time frames in its 2000 enforcement agreement. 

We did not evaluate controls over RCRIS, although we 

used information from this national data system in our audit. 

See Exhibit 1 for details on our scope and methodology. 

PRIOR AUDIT The Office of Inspector General (OIG) issued two prior 

COVERAGE reports related to Region 8 RCRA enforcement: 

• The most recent report, dated September 31, 1991, 

examined the Region's administration of state RCRA 

enforcement activities. The audit found that Colorado, 

Utah, and Montana generally had not implemented 

strong enforcement programs or enforced penalties 

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Actions Would Strengthen Montana's RCRA Enforcement Program 

because Region 8 had not developed an oversight 

program and the states were hesitant to take strong 

enforcement actions against violators for fear of losing 

business. In our current audit, we did not find that 

Montana hesitated to take strong enforcement actions 

due to a fear of losing business. However, as discussed 

in this report, we found other reasons why Montana did 

not appropriately classify violators or initiate timely 

enforcement actions. 

• The earlier report, dated September 13, 1988, examined 

Region 8's controls over compliance monitoring of 

RCRA enforcement consent agreement provisions. 

While this report specifically addressed the tracking and 

control of RCRA enforceable consent agreements, it 

reported that some RCRA program violators were 

either not responding both timely and adequately, or 

there was no clearly documented evidence of their 

compliance with consent agreements. 

Both the 1991 and 1988 reports recommended tighter 

controls within Region 8's RCRA program and more 

thorough oversight of state RCRA compliance monitoring 

and enforcement programs. As a result of the audits, 

Region 8, with its states, developed a standard operating 

procedure for hazardous waste compliance monitoring and 

enforcement programs to maximize consistency and 

program effectiveness across the Region. 

In addition, OIG issued numerous reports between 1998 

and 1999 on RCRA significant noncomplier identification in 

other regional and state offices. Audits conducted in 

Regions 1, 3, 5, 7, and 10 examined the effectiveness of 

significant noncomplier identification in those regions and in 

the states of Rhode Island, Virginia, Illinois, Nebraska, and 

Washington, respectively. The audits typically found that: 

(1) state enforcement programs were inconsistent with EPA 

policies, (2) facilities were not always correctly classified, 

(3) states did not impose strong penalties, (4) state RCRA 

files did not contain adequate documentation on return to 

compliance, (5) states did not always perform followup 

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inspections where appropriate, (6) states took inappropriate 

enforcement actions, and (7) states did not enter accurate 

and complete RCRIS data. 

See Exhibit 2 for a complete listing of prior audits. 

9 Report No. 000762-2001-P-00004 
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Actions Would Strengthen Montana's RCRA Enforcement Program 

CHAPTER 2

MDEQ NEEDED TO MORE APPROPRIATELY CLASSIFY VIOLATORS 

AND INITIATE TIMELY ENFORCEMENT ACTIONS 

ENFORCEMENT 

AGREEMENT 

REQUIREMENTS 

MDEQ did not always appropriately classify violators or 

initiate timely enforcement actions in accordance with its 

enforcement agreement with Region 8. MDEQ’s untimely 

initial enforcement actions did not help return facilities to 

compliance in a timely manner. Additionally, MDEQ did 

not always consider economic benefit or multi-day 

components in its penalty calculations. These conditions 

occurred because MDEQ did not always utilize EPA 

guidance or adequately balance compliance assistance with 

enforcement. Also, MDEQ could have benefitted from 

more effective case monitoring and a more collaborative 

internal team approach. We also found that MDEQ staff 

did not adequately document their RCRA activities in the 

facility files. While MDEQ staff generally recorded 

accurate data in RCRIS, the Department did not 

consistently record penalty information into RCRIS, and 

Region 8 staff did not adequately update RCRIS. As a 

result, Montana facilities did not always return to 

compliance as quickly as possible, and these delays could 

have increased the potential for harm to human health and 

the environment. 

The 1993 RCRA enforcement agreement between Montana 

and Region 8 authorized MDEQ to take timely and 

appropriate enforcement action against all persons in 

violation of the Montana Hazardous Waste Act. The 1993 

enforcement agreement incorporated the enforcement 

criteria in EPA’s 1987 enforcement response policy. 

Region 8 and MDEQ did not update the 1993 agreement to 

include the revised enforcement criteria in EPA's 1996 

policy. MDEQ considered the 1993 enforcement agreement 

time frames as MDEQ’s goals for good performance and as 

guidelines for reviewing progress in individual cases. The 

1993 agreement specified that 

10 Report No. 000762-2001-P-00004 
o

o

ö

ö

ö

Appropriate Violator Classifications and Timely Initial Enforcement 

Actions Would Strengthen Montana's RCRA Enforcement Program 

timeliness would be case-specific and that MDEQ would 

document any deviation from established time frames. 

The 1987 and 1996 enforcement response policies require 

that violation discovery and the decision to take formal 

enforcement action against a facility must be made within 45 

and 90 days, respectively, of the facility’s “evaluation date,” 

or date it was initially inspected. Beyond this similarity, 

significant differences exist between the 1987 and 1996 

enforcement response policies. 

Key points in the 1987 enforcement response policy: 

o 45 days from inspection to violation discovery and 

determination of significance 

o 90 days from violation discovery to either initiate 

formal administrative action or refer to judicial 

authority 

Key points in the 1996 enforcement response policy: 

ö 90 days from evaluation date to determine whether 

violations are significant enough to warrant a formal 

enforcement response 

ö If informal enforcement action does not return a facility 

to compliance within 90 days from the evaluation date, 

formal enforcement action must be initiated 

ö 180 to 300 days maximum, once a violation is 

discovered, to issue a final order to return the facility to 

In addition, MDEQ’s enforcement response manual includes 

time frames that overlay those contained in the 1987 

enforcement response policy. For example, MDEQ’s 

manual states that enforcement requests should be 

submitted for approval within 90 days of first discovery of 

the violations. MDEQ staff must complete an enforcement 

request in order to initiate a formal enforcement action. 

Though dated in 1999, MDEQ officials stated that they 

used the enforcement request process outlined in the 

Department’s manual during the period of our review. 

MDEQ’s 1995 Penalty Policy for the Hazardous Waste 

Program mandates the recapture of any significant 

economic benefit the violator may have gained from non11 Report No. 000762-2001-P-00004 
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VIOLATOR 

CLASSIFICATIONS AND 

ENFORCEMENT 

DECISIONS DID NOT 

ALWAYS FOLLOW 

POLICY 

compliance and that penalties appropriately capture the 

gravity of the violation committed. When calculating the 

penalty, the policy requires MDEQ to complete two 

separate calculations: 

• The first calculation determines an appropriate 

amount to assess in the administrative order or other 

action. 

• The second calculation explains and documents 

MDEQ's process to develop a final agreed-upon 

penalty. 

EPA’s RCRA civil penalty policy states that the purpose of 

the policy is to ensure that RCRA civil penalties are 

assessed in a fair and consistent manner, penalties are 

appropriate for the gravity of the violation, economic 

incentives for non-compliance are eliminated, penalties are 

sufficient to deter persons from committing violations, and 

compliance is quickly achieved and maintained. The RCRA 

civil penalty policy further notes that, 

...in order to support the penalty proposed in 

the complaint, enforcement personnel must 

include in the case file an explanation of how 

the penalty amount was calculated. 

Both policies establish requirements to ensure that penalties 

are consistent with the goals of: deterrence, fair and 

equitable treatment of the regulated community, and swift 

resolution of environmental problems. 

MDEQ did not always appropriately classify violators or 

make timely decisions whether to take formal enforcement 

actions. Violation discovery helps MDEQ staff determine 

violator classifications and conclude whether to take formal 

enforcement action against a facility. 

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Actions Would Strengthen Montana's RCRA Enforcement Program 

Despite EPA’s 1987 enforcement response policy 

requirements, MDEQ did not appropriately classify facilities 

in 9 of the 47 files reviewed. Many of the facilities 

appeared to be chronic or recalcitrant violators. Examples 

of two cases follow in Table 2-1: 

Table 2-1 – Violators Inappropriately Classified 

Facility 

Name 

Problem 

MT14 Never Classified: 

This large oil refinery was never classified as a high 

priority violator despite repeated Class I and II 

violations during nine inspections between 1992 and 

1999. The facility’s violations included improper 

management of its storage areas, improper management 

of accumulation areas, unlabeled used oil containers, 

uncovered containers, and a cracked regulated unit cap. 

MT27 Not Classified Timely: 

Before being classified as a high priority violator on 

08/24/99, this train maintenance facility had repeated 

Class I and II violations during four inspections between 

1992 and 1999. The facility’s violations included 

mislabeled drums and soil contaminated by used oil. 

The enforcement request, reclassifying the facility to 

high priority violator status, listed 20 repeat violations 

between 1990 and 1999 and noted that the facility had 

been recalcitrant since 1990. MDEQ staff stated that the 

enforcement request for MT27 should have been more 

clearly written to indicate that the facility finally passed 

the high priority violator threshold in 1999. 

See Exhibit 3 for a complete list of all 9 inappropriate 

violator classifications. 

MDEQ did not always make timely violation discoveries or 

decisions to take formal enforcement actions in accordance 

with EPA’s 1987 policy. Of the 47 files reviewed, MDEQ 

took formal enforcement actions for 16 facilities. In most 

of the 16 cases, MDEQ made timely violation discoveries. 

However, in 5 of the 16 enforcement actions, MDEQ’s 

timeliness of violation discovery exceeded the 45-day 

requirement specified in EPA’s 1987 enforcement response 

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policy. For example, 170 days elapsed between MT39's 

inspection and MDEQ’s date of violation discovery. 

Similarly, 88 days elapsed between MDEQ’s inspection at 

the MT19 facility and the date MDEQ discovered the 

violations at the site. See Exhibit 4-A for details on all 16 

formal enforcement actions under EPA’s 1987 enforcement 

response policy. 

MDEQ’s decisions to take formal enforcement action also 

did not always meet time frames included in MDEQ’s 1999 

enforcement response manual. MDEQ’s enforcement 

response manual states that in order to initiate an 

enforcement action, an enforcement request must be 

submitted within 90 days of first discovery of the violations. 

In 5 of the 16 formal enforcement actions, MDEQ’s 

decision to complete enforcement requests exceeded the 90-

day requirement. For example, 240 days elapsed between 

MDEQ’s violation discovery at the MT42 facility and the 

date of the enforcement request. Exhibit 4-B illustrates the 

timeliness of MDEQ’s decisions to take formal enforcement 

actions based on the Department’s 1999 enforcement 

response manual process. 

Additionally, MDEQ's decisions to take formal enforcement 

action also exceeded time frames in EPA's 1996 

enforcement response policy. We recognize that Region 8 

did not require MDEQ to comply with the 1996 policy. 

However, we wanted to analyze how timely MDEQ would 

have been had it used the more lenient time frames in the 

1996 policy. The 1996 enforcement response policy 

requires that the decision to take formal enforcement action 

must be made within 90 days of the initial inspection or 

evaluation. In 7 of the 16 formal enforcement actions, 

MDEQ’s decision to take formal enforcement exceeded the 

90-day requirement. For example, 165 days elapsed 

between MDEQ’s inspection at the MT19 facility and the 

date of MDEQ’s enforcement request. Exhibit 4-C 

illustrates the timeliness of MDEQ’s decisions to take 

formal enforcement actions based on EPA’s 1996 

enforcement response policy. 

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INITIAL FORMAL MDEQ initiated untimely formal enforcement actions in 15 

ENFORCEMENT of 16 cases. MDEQ’s initial enforcement response ranged 

ACTIONS WERE NOT from 40 days under to 347 days beyond the time frames 

TIMELY required in both the 1987 and 1996 enforcement response 

policies. On average, it took MDEQ staff 229 days from 

violation discovery to initiation of formal enforcement 

action at each of the 16 facilities. Even under the new 2000 

consolidated cooperative enforcement agreement that 

provides more lenient time frames, MDEQ’s actions to 

return facilities to compliance would have been untimely in 

9 of 15 instances. As a result of untimely initial 

enforcement actions, MDEQ did not compel facilities to 

return to compliance in a rapid or expeditious manner. 

Following are two examples in which MDEQ’s formal 

enforcement actions did not comply with 1987 enforcement 

response policy time frames: 

TABLE 2-2 – Untimely Formal Enforcement Actions 

Facility 

Name 

MDEQ Activities 1987 Enforcement 

Response Policy 

90 day requirement 

MT19 - 07/30/99 violation 

discovery 

- 03/21/00 demand letter 

234 days 

MT39 - 02/12/99 violation 

discovery 

- 10/08/99 administrative 

order 

239 days 

The 1993 enforcement agreement allowed the Department 

to exceed standard timelines under some circumstances. 

The circumstances that could possibly impact or alter EPA 

established time frames include the type of violation, 

complex negotiation, investigation, testing, production and 

analysis of evidence, and unique questions of law requiring 

additional time for case analysis. MDEQ stated that each of 

the cases that exceeded the time frames resulted from 

unique circumstances and thus the standard 1993 

enforcement agreement timelines did not apply. For 

example, MDEQ stated that for facility MT19, Region 8's 

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delayed issuance of a variance compromised MDEQ’s 

initiation of formal enforcement and resolution of the 

violation. However, Region 8’s issuance of a variance 

should not have impeded MDEQ’s efforts in taking timely 

enforcement action at facility MT19. Region 8 oversight 

inspectors worked very closely with MDEQ staff to ensure 

that MDEQ officials had the same information as Region 8 

regarding the status of MT19's variance, and that MDEQ’s 

actions were not affected by Region 8’s issuance of a 

variance. 

MDEQ did not always document the reasons for deviations 

from the timelines in the case files. While the 1993 

enforcement agreement allowed MDEQ to exceed time 

frames under some circumstances, the agreement also states 

that “reasons for deviations from timelines will be 

documented by the lead agency.” In addition, the 1987 

enforcement response policy states where time frames will 

be exceeded due to case-specific circumstances, the states 

and regions must monitor case development. Additionally, 

where timely enforcement action will not be feasible, the 

states and regions must be prepared to justify the delay and 

develop an alternative schedule for case resolution to which 

they closely adhere. MDEQ did not develop alternative 

schedules for those cases that exceeded the time frames in 

the policy. 

Region 8's end-of-year compliance monitoring and 

enforcement reviews also identified problems with MDEQ’s 

timeliness. For example, in the Region’s fiscal 1998 review, 

the reviewer recommended that MDEQ take steps to 

improve its ability to issue initial formal actions on a more 

timely basis. The reviewer also stated that the actions filed 

during fiscal 1998 always exceeded the time allowed by the 

1993 enforcement agreement by periods ranging from 15 

days to 112 days and similar conditions occurred for cases 

reviewed in fiscal 1996 and 1997. 

See Exhibit 5 for a complete list of the 16 formal 

enforcement cases. Exhibit 5 compares MDEQ’s actions 

against the 1987 enforcement response policy as well as the 

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PENALTY 

CALCULATIONS DID 

NOT COMPLY WITH 

POLICY 

MDEQ Penalty Policy 

Requirements 

• Violations involving 

the management of 

hazardous waste 

should reflect the 

probability that the 

violation could have 

resulted in a release of 

hazardous waste. 

• The Department 

should explain and 

document the process 

by which it arrived at 

the penalty figure. 

• Penalties should 

recapture any 

economic benefit the 

violator accrues as a 

result of noncompliance. 

1996 enforcement response policy and 2000 consolidated 

cooperative enforcement agreement. 

In 13 of 15 cases where MDEQ sought penalties against 

non-compliant facilities, the penalty calculations did not 

comply with state or federal policy. Both Montana’s and 

EPA’s RCRA penalty policies require well documented 

penalty calculations that capture the gravity of the violation 

committed by a high priority violator and eliminate the 

economic incentives of non-compliance. Both policies state 

that economic benefit should be calculated even if it is later 

found to be negligible. For example, the following cases 

illustrate where MDEQ did not calculate a penalty as 

required by the penalty policies: 

TABLE 2-3 – Penalty Calculations Inadequate 

Facility 

Name 

MDEQ Penalty Activities 

MT20 MDEQ classified this lumber facility as a high 

priority violator for unlawfully disposing of wood 

treating solution without a permit. 

assess a penalty citing that the owner had an inability 

to pay, although the file showed that the facility 

owner could pay a maximum penalty of $12,980. 

MT39 MDEQ classified this lumber facility as a high 

priority violator for numerous violations, including 

operating an unpermitted disposal facility. 

did not assess a penalty. 

they issued a cleanup order for this facility, not a 

penalty order. 

MT41 MDEQ classified this furniture refinishing facility as 

a high priority violator for a direct release of wood 

stripping solvents to the groundwater under the 

facility. 

determined that the owner had an inability to pay. 

However, Montana’s penalty policy states that ability 

to pay should be used to adjust a penalty only after 

making a full penalty calculation. 

MDEQ did not 

MDEQ 

MDEQ officials stated that 

MDEQ did not assess a penalty because it 

17 Report No. 000762-2001-P-00004 
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REGION 8 RCRIS 

DATA ENTRY NEEDED 

IMPROVEMENT 

MDEQ officials stated that they generally considered 

economic benefit in all penalty assessments but they did not 

always place written documentation of the economic benefit 

calculation in the case file. In 12 of the 13 penalty cases, 

MDEQ did not have documentation supporting that it either 

considered or calculated economic benefit or multi-day 

components. 

See Exhibit 6 for a complete list of the 13 cases where 

MDEQ’s penalty calculations did not comply with state or 

federal policy. 

Region 8 staff did not adequately update RCRIS to reflect 

their facility inspection and enforcement activities. For 

example, Region 8 oversight inspectors did not input case 

settlement data into RCRIS for the MT02 facility, or 

oversight inspection information for the MT19 facility. 

Region 8 guidance emphasized that RCRIS was the 

mechanism for measuring case progress. Region 8 

generates RCRIS reports based on data entered by the 

Region and its six states, and EPA national offices examine 

RCRIS data for oversight purposes. Region 8 staff 

acknowledged their RCRIS problems and indicated they 

needed additional RCRIS training. 

MDEQ staff generally recorded accurate data in RCRIS, 

and the State’s files contained supporting documentation for 

RCRIS activities. However, MDEQ staff did not 

consistently record penalty information in RCRIS. MDEQ 

staff responsible for RCRIS data entry acknowledged their 

inconsistencies, and stated that they have taken steps to 

improve their data entry of penalty information. MDEQ 

staff also recognized the importance of timely and accurate 

RCRIS data entry for EPA’s national reporting. Finally, 

MDEQ officials stated that the new RCRIS enterprise-wide 

database should make data entry more frequent and 

accurate. 

18 Report No. 000762-2001-P-00004 
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IMPROVEMENTS 

NEEDED TO 

STRENGTHEN MDEQ’S 

RCRA ENFORCEMENT 

PROGRAM 

MDEQ Needed to Use EPA 

Guidance 

MDEQ’s inappropriate violator classifications, untimely 

initial enforcement actions, and inconsistently documented 

penalty decisions occurred because MDEQ did not always 

utilize EPA guidance or adequately balance compliance 

assistance with enforcement requirements. MDEQ also 

could have benefitted by effectively monitoring case 

progress and implementing a more collaborative internal 

team approach in case management. In addition, MDEQ 

staff did not adequately document their RCRA activities in 

the facility inspection and enforcement files. As a result, 

Montana facilities did not always return to compliance as 

quickly as possible, and these delays could have increased 

the potential for harm to human health and the environment. 

MDEQ and Region 8 did not update their 1993 RCRA 

enforcement agreement to incorporate EPA's 1996 

enforcement response policy. During fiscal 1997 through 

1999, MDEQ operated, and Region 8 evaluated MDEQ, 

under the 1993 RCRA enforcement agreement. The 1993 

enforcement agreement references timely and appropriate 

criteria as defined in the 1987 enforcement response policy. 

Although MDEQ agreed to use the criteria in the 1987 

policy, MDEQ enforcement division staff claimed EPA's 

policy established unrealistic time frames and stated they did 

not comply with them. MDEQ staff further indicated that 

each case must be evaluated individually since the time 

frames in EPA’s policy could not be applied to many 

facilities in Montana. In addition, MDEQ enforcement staff 

stated that tracking and meeting out-of-date, programspecific time frames was not a priority during negotiations 

of the 2000 consolidated cooperative enforcement 

agreement. MDEQ staff explained that both MDEQ and 

Region 8 recognized that MDEQ's compliance with these 

policies was not likely. 

Region 8 enforcement officials said other Region 8 states 

incorporated the 1996 enforcement response policy criteria 

without drafting new agreements between the states and 

Region 8. However, Region 8 did not require MDEQ to 

incorporate the 1996 enforcement response policy criteria 

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Better Balance Needed 

Between Compliance 

Assistance and 

Enforcement 

into the State’s RCRA compliance monitoring and 

enforcement program. Region 8 stated that Montana’s 

1997 legislature enacted the Voluntary Environmental Audit 

Law, which raised serious questions within Region 8 

regarding Montana’s continued ability to enforce its own 

environmental laws. Region 8 was not willing to formally 

update the enforcement agreement until Region 8 and 

Montana resolved the issue of enforceability. In December 

1999, Region 8 and Montana resolved the issue of 

enforceability and signed a memorandum of understanding. 

Region 8 also added that since the 1996 policy was more 

lenient than the 1987 policy in its enforcement timeline, the 

Region questioned whether it would have been beneficial to 

adopt the 1996 policy. 

MDEQ’s director stated that MDEQ focused its efforts on 

developing a new consolidated cooperative enforcement 

agreement as part of a pilot effort approved by EPA. 

MDEQ staff stated that the time frames in the new 

agreement contained more realistic targets than those in the 

enforcement response policies. However, as depicted in 

Exhibit 5, had MDEQ applied the new agreement’s time 

frames for the 16 facilities with formal enforcement actions, 

MDEQ still would have been untimely in 10 of the 16 

instances. 

MDEQ needed to better balance when it applied compliance 

assistance versus enforcement. MDEQ focused on 

compliance assistance when it determined violator 

classifications and calculated penalties. MDEQ's 

enforcement response manual states: 

The initial response to many violations will 

be to provide compliance assistance. If a 

person ignores the Department’s compliance 

assistance efforts and remains out of 

compliance or a violation is significant, an 

enforcement action may be appropriate. 

Violator Classifications In 9 of 47 instances, MDEQ gave facilities numerous 

20 Report No. 000762-2001-P-00004 
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Actions Would Strengthen Montana's RCRA Enforcement Program 

opportunities to address repeated similar violations rather 

than classify the facilities as high priority violators. The 

1987 enforcement response policy lists four factors to 

consider when classifying a facility as a high priority 

violator: (1) a handler who has caused actual exposure, or 

substantial likelihood of exposure to hazardous waste or 

hazardous constituents; (2) chronic or recalcitrant handlers 

(this includes handlers who are regularly found to have 

many Class I or Class II violations); (3) a handler who 

deviates from the terms of a permit, order, or decree by not 

meeting requirements in a timely manner and/or by failing to 

perform work as required by terms of permits, orders, or 

decrees; or (4) a handler who substantially deviates from 

RCRA statutory or regulatory requirements. 

MT05, a large facility, had repeated Class II violations, 

including used oil spills, during its 1996 and 1998 

inspections. However, MDEQ did not classify the facility as 

a high priority violator following the 1998 inspection. 

MDEQ staff said MT05’s small releases pertained to 

container management and that their response corresponded 

to the gravity of the spills. However, we agree with Region 

8 oversight inspectors who said that any more than one 

attempt at compliance assistance for the same violation was 

no longer compliance assistance but rather consulting work. 

We also agree with Region 8 oversight inspectors who 

added that larger facilities such as MT05 should be familiar 

with environmental requirements and the State should not 

be continually providing compliance assistance. 

Similarly, MDEQ provided smaller facilities, such as MT36, 

repeated opportunities to address their violations. The 

MT36 facility had repeated similar violations during several 

inspections between 1995 and 1999. An MDEQ inspector 

said facility staff turnover at MT36 led the inspector to 

continue with informal enforcement action rather than 

classify the facility as a high priority violator. One MDEQ 

inspector added that he did not see the value in escalating 

small “mom and pop” facilities for formal enforcement, and 

preferred informal warning letters. A former enforcement 

division case manager also stated that MDEQ would “go 

21 Report No. 000762-2001-P-00004 
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Penalty Calculations 

easy” on smaller facilities because those facilities lacked 

appropriate education on environmental regulations. 

However, the enforcement response policy mandates formal 

enforcement for repeat violators regardless of the facility’s 

size. In our opinion, a facility’s size should not influence 

MDEQ’s decision to pursue formal enforcement action 

where violations warrant a more stringent enforcement 

response. 

MDEQ’s director did not agree with EPA’s enforcement 

approach to achieve facility compliance. He stated that 

MDEQ’s approach was to use enforcement as one of the 

many tools to obtain facility compliance. While MDEQ’s 

director also stated that the Department’s primary goal was 

to encourage businesses to comply with environmental laws, 

MDEQ attempted to achieve that goal through compliance 

assistance as well as formal enforcement. He further stated 

that MDEQ’s overall attitude about how to work with a 

facility was to be non-confrontational while ensuring 

compliance. The director emphasized that if a facility was 

intentionally violating the law, then MDEQ would take an 

enforcement action. He added that inspectors should ask 

themselves whether a facility was trying to operate within 

the law or not. MDEQ and Region 8 inspectors agreed that 

intent was difficult to document and if cases were based 

solely on intent, few formal enforcement actions would be 

taken. 

Exhibit 3 lists all 9 inappropriate violator classifications. 

MDEQ continued its compliance assistance focus through 

the penalty calculations phase. For example, MDEQ did not 

assess penalties against the MT20 and MT39 facilities, 

although MDEQ took formal enforcement actions against 

each facility. Both Montana’s and EPA’s RCRA civil 

penalty policies require well documented penalty 

calculations that capture the gravity of the violation 

committed and eliminate the economic incentives of noncompliance. Both policies establish requirements to ensure 

that penalties are consistent with the goals of deterrence, 

fair and equitable treatment of the regulated community, 

22 Report No. 000762-2001-P-00004 
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Actions Would Strengthen Montana's RCRA Enforcement Program 

Improved Monitoring of 

Case Progress Needed 

and swift resolution of environmental problems. EPA’s 

1987 enforcement response policy states that enforcement 

actions against high priority violators should penalize the 

violator and recover economic savings the violator may 

have accrued. MDEQ staff said they did not assess 

penalties against MT20 and MT39 because staff considered 

the formal enforcement actions as cleanup orders rather 

than penalty orders. However, MDEQ cited the two 

facilities for high priority violations which warranted a 

gravity component according to both the enforcement 

agreement and the enforcement response policy. Both the 

MT20 and MT39 cases had at least the appearance of 

economic benefit, thus warranting at least the calculation of 

an economic benefit component. 

One former enforcement division case manager said that, in 

general, if MDEQ could get a facility to comply, it would 

forego a penalty calculation. MDEQ’s director said that the 

enforcement division uses its discretion in every case and 

will only pursue penalties for significant violations. 

Enforcement division staff added that they would not assess 

penalties against facilities if MDEQ knew that they could 

not collect from the facility. However, Region 8 oversight 

inspectors said MDEQ officials should not be writing off 

penalties because a facility has an inability to pay. We agree 

with Region 8 oversight inspectors who said MDEQ should 

cite violations, fully calculate initial penalties (including 

economic benefit, where appropriate), and document and 

justify any reductions in penalty calculations or decisions to 

drop a case. 

MDEQ did not always effectively monitor case progress. 

Monitoring case progress includes tracking cases against 

required state and EPA time frames, such as those contained 

in EPA’s 1987 enforcement response policy, and prioritizing 

cases based on adherence to time frames and other 

considerations. Monitoring case progress is an important 

management tool to determine where resources need to be 

focused, to prevent unnecessary delays in enforcement 

actions, and ultimately to prevent harm to the environment 

and human health. In addition, monitoring case progress is 

23 Report No. 000762-2001-P-00004 
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Table 2-4 

MT26 Activities 

Date MDEQ Actions 

09/03/96 complaint received 

10/15/96 enforcement division 

inspection 

05/23/97 second complaint 

received 

08/18/97 second enforcement 

division inspection 

09/24/97 enforcement division 

sent violation letter 

05/28/98 third enforcement 

division inspection 

06/05/98 enforcement division 

sent second violation 

letter 

07/09/98 permitting and 

compliance division 

inspection 

07/31/98 enforcement request 

signed 

important to ensure that MDEQ initiates action on cases 

within Montana’s 2-year statute of limitations, which 

restricts the Department’s ability to take enforcement 

actions after that time. MDEQ uses an enforcement 

compliance information system to monitor and report 

enforcement activities. However, at the time of our review, 

the system did not track cases against time frames contained 

in EPA’s 1987 enforcement response policy. 

The MT26 case was one example where effective 

monitoring may have prevented substantial delays in case 

progress. The case originated from two separate complaints 

MDEQ's enforcement division received in 1996 and 1997. 

Enforcement division personnel conducted inspections 

following each complaint, noting heavy saturation of oil 

spillage and asphalt flow on the ground each time. After a 

third followup inspection 633 days after MDEQ received 

the original complaint, the enforcement division advised the 

facility that it was still out of compliance. In June 1998, the 

enforcement division referred the case to State inspectors 

for additional field investigation. After observing no 

evidence that the facility had cleaned up the used oil or 

asphalt, the MDEQ inspector immediately filed an 

enforcement request sending the case back to the 

enforcement division. As a result, the soil remained 

contaminated with used oil for almost 2 years before 

MDEQ took a formal enforcement action. Monitoring 

would have allowed MDEQ to assess where the MT26 case 

was in relation to enforcement response policy time frames 

and the State’s statute of limitations. See Table 2-4 for 

activities that took place at the MT26 facility. 

Monitoring case progress may have prevented unnecessary 

delays in addressing MT12's violations as well. After 

inspecting and citing the facility for operating an 

unpermitted treatment, storage, and disposal facility and 

unlawful disposal of hazardous waste, the inspector initiated 

an enforcement request. Although MDEQ staff collected 

evidence and prepared the case, the enforcement division 

eventually dropped the case due to lack of evidence and 

questioned whether environmental damage actually 

24 Report No. 000762-2001-P-00004 
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occurred. However, it took MDEQ over 300 days to make 

this determination. 

While we did not independently review the evidence MDEQ 

staff relied upon to dismiss the case, we did review the case 

file and discussed the case with the inspector and case 

manager. Based upon MDEQ’s subsequent inspections of 

the site, enforcement division staff said that cans contained 

the waste, no leaking occurred, and the facility owner 

cleaned up the site. However, the picture below depicts the 

violations at the MT12 site and illustrates that leaking did 

occur and cans did not contain the waste. Monitoring 

would have helped MDEQ assess where technical 

knowledge and/or enforcement knowledge was needed. At 

the very least, monitoring would have allowed MDEQ staff 

to evaluate the case and identify how similar situations 

could be prevented from happening again. 

The MT12 facility. 

MDEQ staff did not take advantage of established time 

frames as criteria to monitor case progress. MDEQ officials 

stated that consistent time frames would not affect the 

outcome of specific cases. MDEQ staff also stated that they 

did not look at time frames to help prioritize cases or 

allocate resources. Rather, the enforcement division took 

cases as they came in, and worked as fast as they could to 

keep cases moving forward. The enforcement division 

administrator stated that his division did not “triage” 

25 Report No. 000762-2001-P-00004 
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More Collaborative 

Internal Team Approach 

Needed 

Information-Sharing Could 

Improve Communication 

enforcement requests, or perform quick initial assessments, 

except in emergency situations that posed imminent threats 

to the environment. 

Although enforcement division staff said they do profile 

each case to determine which cases can go through the 

judicial process, better collaboration among MDEQ 

divisions could help the Department effectively use its 

resources. Additionally, by instituting a process where 

cases are prioritized and monitored against time frames, the 

enforcement division may be able to better identify more 

difficult cases, allocate resources more effectively, and 

ensure that cases progress as quickly as possible. 

MDEQ needed to apply a more collaborative internal team 

approach in its enforcement of hazardous waste laws. 

MDEQ’s 1995 reorganization created a system that relied 

on strong communication to be effective since the 

reorganization separated compliance activities from 

enforcement activities. MDEQ files contained several 

examples where increased information-sharing and 

communication by divisional staff could have improved case 

development. Also, cross-training could have helped 

MDEQ divisions better understand the information other 

staff needed to effectively manage cases. 

Increased divisional information-sharing could have 

prevented miscommunication in some cases. For example, 

information on a used oil spill at the MT26 facility spent 

nearly 2 years in MDEQ’s enforcement division complaints 

management section before being passed to inspectors in the 

permitting and compliance division. The inspectors 

subsequently conducted a further inspection and quickly 

compiled the information necessary to submit a formal 

enforcement request. However, the site remained 

contaminated during the 2 years it took the enforcement 

division complaints management section to share the 

information. 

Similarly, insufficient information prevented an enforcement 

division case manager from adequately explaining why the 

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penalty dropped from $8,500 to $1,000 in the MT42 case. 

The case manager thought the attorney assigned to the case 

would have documented his rationale for the penalty 

reduction. However, the MT42 enforcement case file did 

not contain the rationale. The attorney stated he fully 

explained the penalty reduction in an enforcement sensitive 

file he maintained separate from the case file and that 

litigation risks justified the penalty reduction for the MT42 

case. The attorney, however, had not shared that 

information with the case manager. Because the 

information would have been beneficial to the case manager, 

we believe the attorney should have made a short 

descriptive note in the case file regarding the penalty 

reduction. In addition, a reference in the case file that the 

enforcement sensitive file contained additional information 

would help to ensure that MDEQ fully supported its penalty 

decisions. 

MDEQ staff said that divisional managers shared 

information on cases. For example, managers meet once a 

week to discuss case status and they also prepare monthly 

reports that summarize MDEQ activities. Managers also 

get together quarterly to develop the Department’s 

compliance monitoring strategy. However, despite these 

efforts, some MDEQ staff stated they were not involved in 

RCRA case decisions. MDEQ’s air and waste management 

bureau chief said that effective teamwork could result in 

timely enforcement and adequately documented penalties 

that provide economic disincentives and deter noncompliance by the regulated industry. 

One MDEQ staff member admitted that the divisions had a 

strained relationship with one another following MDEQ’s 

1995 reorganization, and that each division had a different 

idea of what constituted appropriate enforcement. MDEQ 

staff stated that enforcement case managers lost intimate 

facility knowledge as a result of being separated from 

compliance staff following the reorganization. However, 

enforcement division section chiefs stated their staff did not 

lose facility knowledge as a result of the reorganization. 

They said their staff had a team approach toward 

27 Report No. 000762-2001-P-00004 
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Cross-Training Could 

Improve Case Development 

enforcement cases and, as a “service division,” enforcement 

personnel needed to remain in contact with the inspectors to 

verify facts and other facility data. Nevertheless, 

enforcement division staff said they generally felt “out of the 

loop” in communications between MDEQ’s permitting and 

compliance division and legal unit. Region 8 oversight 

inspectors also said that MDEQ’s inspectors complained 

about feeling “cut off” from their work once they referred a 

case to the enforcement division. 

High turnover in MDEQ’s enforcement division increased 

the need to have staff share information. Region 8 staff 

stated that high turnover in MDEQ’s enforcement division 

caused a loss of continuity in some cases because 

inadequate documentation prevented new staff from 

understanding issues raised earlier in the case. For example, 

in a letter to Region 8, the MDEQ enforcement division 

case management section chief wrote that staff turnover of 

three employees caused a delay in the approval of MT32's 

supplemental environmental project. Similarly, a vacancy in 

MDEQ’s enforcement division liaison position made 

information exchange more difficult since the liaison served 

as a facilitator between the enforcement division and other 

divisions. 

Increased cross-training among MDEQ divisions could have 

helped staff better manage their cases. For example, 

enforcement division staff argued that the State inspectors 

were unaware of what was required to make a strong 

enforcement case against the MT12 facility. Similarly, a 

State inspector said in one report that an enforcement 

division complaints manager did not note asphalt seepage 

during his investigation at the MT26 facility. 

MDEQ officials stated that permitting and compliance 

division staff could benefit from increased case development 

knowledge, while enforcement division staff could benefit 

from more familiarity with RCRA regulatory requirements. 

A Region 8 oversight inspector added that MDEQ’s 

inspectors could benefit from a broader case development 

perspective when reviewing facilities, and that inspectors 

28 Report No. 000762-2001-P-00004 
Appropriate Violator Classifications and Timely Initial Enforcement 

Actions Would Strengthen Montana's RCRA Enforcement Program 

Improved Documentation 

Needed 

Insufficient Documentation 

of MDEQ’s Penalty 

Calculations and Reductions 

should be trained on such areas as “selling a case to 

management” and writing effective warning letters. The 

Region 8 inspector also said MDEQ’s enforcement division 

staff could benefit from increased technical expertise in 

determining the appropriate enforcement response for 

RCRA violations. 

MDEQ did not adequately document its RCRA compliance 

monitoring and enforcement program activities in the 

facility inspection and enforcement files. MDEQ needed to 

better document its rationale for penalty calculations and 

enforcement action classifications, as well as a facility’s full 

return to compliance. 

MDEQ’s enforcement response manual states that: 

To support the penalty proposed in an order 

or complaint, a written explanation of how 

the penalty was calculated must be placed in 

the case file. The documentation must 

include a brief narrative explaining the 

rationale for the penalty amount, along with 

any relevant information or documents that 

support the penalty calculation. 

Similarly, EPA’s 1993 Oversight of State and Local Penalty 

Assessments: Revisions to the Policy Framework for 

State/EPA Enforcement Agreements states that it is 

important that accurate and complete documentation of 

economic benefit calculations be maintained to support 

defensibility in court, enhance negotiating posture, and lead 

to greater consistency. 

MDEQ did not adequately document its rationale for 

penalty calculations in 13 of 15 formal enforcement actions. 

For example, the MT27 file insufficiently explained why 

MDEQ decided not to include economic benefit or multiday components in the Department’s $20,497 penalty 

calculation. Although MDEQ staff said they calculated 

economic benefit for the MT27 facility and found the 

benefit insignificant, the enforcement file did not contain 

29 Report No. 000762-2001-P-00004 
Appropriate Violator Classifications and Timely Initial Enforcement 

Actions Would Strengthen Montana's RCRA Enforcement Program 

documents to support that conclusion. MDEQ’s 

enforcement division administrator said his staff could 

determine that economic benefit would be inappropriate for 

certain cases without going through economic benefit 

calculations. Nonetheless, calculations would have 

supported MDEQ’s decision not to include economic 

benefit. The following picture illustrates used oil 

contamination at the MT27 facility. The size of the oil 

contamination suggests that the spill lasted for more than 

one day. MDEQ’s penalty calculation should have included 

a multi-day component as well as a calculation for the 

economic benefit the facility received for not properly 

disposing of the oil. 

The MT27 facility. The dark area 

in the concrete represents used oil 

contamination. 

Additionally, MDEQ’s files did not adequately support the 

rationale for why MDEQ did not seek penalties against the 

MT20 and MT39 facilities. In both instances, MDEQ 

classified the facilities as high priority violators, yet did not 

assess penalties. EPA’s 1987 enforcement response policy 

states that enforcement actions against high priority 

violators should penalize the violator and recover any 

economic savings the violator may have accrued. MDEQ 

staff stated that they did not calculate penalties in those 

30 Report No. 000762-2001-P-00004 
Appropriate Violator Classifications and Timely Initial Enforcement 

Actions Would Strengthen Montana's RCRA Enforcement Program 

cases because the enforcement actions were cleanup rather 

than penalty orders. However, each case file included an 

assessment of the facility owner’s ability to pay. Region 8's 

1999 oversight review found that MDEQ assumed an 

inability to pay at the MT20 facility prior to having 

reviewed all of the facility owner’s financial documentation. 

Finally, MDEQ’s files did not support the Department’s 

penalty calculation and eventual collection for the MT24 

facility. MDEQ classified the facility as a high priority 

violator for operating a hazardous waste facility without a 

permit. In a letter to the facility, MDEQ stated that it had 

evidence to support a $400,000 penalty, but that it would be 

willing to settle for $21,340. MDEQ later reduced its 

penalty calculation to $16,228, and eventually settled with 

the facility for $8,200 according to a June 9, 2000 press 

release. MDEQ did not clearly document its rationale for 

each penalty reduction. 

MDEQ’s enforcement division administrator stated that, in 

general, his staff determine whether they are going to 

pursue a penalty and, if not, they do not calculate a penalty 

or document their decision not to pursue a penalty. MDEQ 

staff added that MDEQ’s enforcement division staff made 

decisions based upon their best professional judgement and 

years of experience. MDEQ staff also stated that the 

Department would rather have facilities with limited 

financial resources spend their money on cleaning up 

violations than on paying penalties. However, MDEQ’s 

penalty policy requires the Department to fully calculate a 

penalty and then negotiate the terms of the penalty with the 

violator. Exhibit 6 lists all cases where MDEQ did not 

comply with either state or federal penalty policy. 

Prior Region 8 oversight reviews in fiscal 1997 through 

1999 also found that MDEQ did not adequately document 

its penalty calculations in a number of cases. According to 

EPA’s 1993 Oversight of State and Local Penalty 

Assessments: Revisions to the Policy Framework for 

State/EPA Enforcement Agreements, in situations where 

31 Report No. 000762-2001-P-00004 
Appropriate Violator Classifications and Timely Initial Enforcement 

Actions Would Strengthen Montana's RCRA Enforcement Program 

Insufficient Documentation 

of Enforcement Action 

Classifications and Return 

to Compliance 

states adopt and implement a sound penalty policy, such as 

keeping complete documentation of penalty calculations, 

the state would receive less EPA oversight with a focus on 

periodic audits, generally limiting discussions of penalties in 

ongoing cases to major matters or unusual circumstances. 

MDEQ’s inspection files did not always document support 

for the Department’s decisions to classify facilities as low 

priority violators instead of high priority violators. 

Although the enforcement response policy does not 

specifically require documentation to support low priority 

violator classifications, the inspection reports occasionally 

included information, such as repeat violations, that 

appeared to warrant higher violator classifications. For 

example, MDEQ classified the MT04 facility as a low 

priority violator even though the facility had the same Class 

II violations during two inspections over a year-and-half 

time period. The inspector said he classified the facility as a 

low priority violator because the facility lacked 

sophistication and filled its environmental manager position 

with a newly-promoted painter. A Region 8 RCRA 

oversight inspector concurred with MDEQ’s violator 

classification, but justified his determination based on the 

fact that the MT04 facility quickly complied with its prior 

violations. 

A simple annotation in the case file referencing the factors 

impacting MDEQ’s violator classification for MT04 would 

have contributed to better case file documentation. 

Improved documentation would better support MDEQ’s 

decisions on violator classifications for facilities that could 

be high priority violators, such as those with repeat 

violations. 

Similarly, MDEQ insufficiently documented why certain 

facilities were given extra time to comply with time frames 

specified in warning letters. For example, while the warning 

letter issued to the MT17 facility required compliance 

within 20 days of letter receipt, MT17 did not comply for 

40 days. The inspector said he knew the facility owner 

32 Report No. 000762-2001-P-00004 
Appropriate Violator Classifications and Timely Initial Enforcement 

Actions Would Strengthen Montana's RCRA Enforcement Program 

worked long hours and, even though the MDEQ inspector 

called to remind the facility owner of the deadline, he still 

gave MT17 extra time to comply. 

MDEQ staff also did not always adequately document in 

facility inspection and enforcement files whether some 

facilities achieved full physical compliance. For example, 

MDEQ staff did not document return to compliance in 

either the MT20 or MT24 cases. MDEQ staff said that 

both cases required the involvement of other programs and 

that the MT20 site would not be fully cleaned up for 

another 2 years. However, MDEQ did not adequately 

document the reasons for the delay. In addition, MDEQ did 

not adequately document return to compliance for facilities 

MT12, MT22, and MT41. 

CONCLUSION While MDEQ’s violator classifications and enforcement 

actions generally contributed to protecting human health 

and the environment from risks associated with improper 

management of hazardous wastes, improvements could be 

made to help reduce potential environmental harm, ensure 

the integrity of MDEQ’s RCRA enforcement program, and 

provide an effective deterrent to non-compliance. 

MDEQ did not always appropriately classify violators, take 

timely initial enforcement actions, or adequately document 

its rationale for penalty calculations and consider economic 

benefit or multi-day components where appropriate. 

MDEQ needed to consistently utilize EPA guidance, 

adequately balance compliance assistance with enforcement, 

and fully document its RCRA activities and decisions. 

MDEQ could have benefitted from more effectively 

monitoring case progress and implementing a more 

collaborative internal team approach. In addition, Region 8 

should adequately update RCRIS to reflect its facility 

inspection and enforcement activities. 

RCRA is one of the main safeguards for protecting human 

health and the environment from the risks posed by 

33 Report No. 000762-2001-P-00004 
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Actions Would Strengthen Montana's RCRA Enforcement Program 

hazardous waste. Consistent, timely, appropriate, and well 

documented actions are necessary to maintain the integrity 

of RCRA programs and ensure that those actions reduce 

potential public and environmental harm. In addition, 

consistent, timely, appropriate, and well documented 

actions maintain MDEQ’s credibility as an effective 

deterrent with the courts, public, and regulated community. 

RECOMMENDATIONS We recommend that the Regional Adminstrator: 

2-1. 

2-2. 

2-3. 

2-4. 

2-5. 

2-6. 

2-7. 

Require MDEQ to comply with its new consolidated 

cooperative enforcement agreement, particularly 

when classifying violators and taking timely and 

appropriate enforcement actions. 

Require MDEQ to escalate chronic or recalcitrant 

violators for formal enforcement rather than 

continue compliance assistance. 

Require MDEQ to fully calculate and document 

penalties, including economic benefit and multi-day 

components where appropriate, when issuing formal 

enforcement actions against high priority violators. 

Provide additional RCRIS training to staff in Region 

8's Montana Operations Office. 

Work with MDEQ to modify its enforcement 

compliance information system to monitor case 

progress and prioritize enforcement requests using 

time frames in the State’s new consolidated 

cooperative enforcement agreement. 

Support MDEQ efforts and provide assistance, 

where appropriate, in developing an informationsharing process so both inspectors and enforcement 

staff are aware of facility activities. 

Support MDEQ efforts and provide assistance, 

34 Report No. 000762-2001-P-00004 
Appropriate Violator Classifications and Timely Initial Enforcement 

Actions Would Strengthen Montana's RCRA Enforcement Program 

2-8. 

2-9. 

2-10. 

where appropriate, in developing a divisional crosstraining plan for staff that provides technical training 

and information on case development. 

Require MDEQ to fully document its actions related 

to penalty calculations and reductions, violator 

classifications, and instances where MDEQ provides 

extended time frames for a facility to return to 

compliance. 

Require MDEQ to maintain full documentation of a 

facility’s return to physical compliance. 

As part of Region 8's Uniform Enforcement 

Oversight System, it should assess whether MDEQ 

has complied with the report's recommendations and 

adjust the level of regional oversight and technical 

assistance accordingly. Region 8 also should 

include pertinent recommendations as part of 

MDEQ's grant conditions, performance partnership 

agreement, and/or other agreements to ensure the 

recommendations are implemented. Finally, the 

Region should develop a tiered approach for states 

that do not properly classify violators or take timely 

enforcement actions. Region 8's approach should 

define when the Region will overfile, directly 

implement the program, withhold grant dollars, and 

finally take back the program. 

AGENCY AND STATE Both Region 8 and MDEQ officials provided comments to 

COMMENTS AND OIG clarify the report. We have incorporated their comments 

EVALUATION and modified the report as appropriate. We have included 

Region 8's complete response in Appendix I.

Region 8 officials agreed with the findings, conclusions, and

recommendations. Region 8 staff stated that its prior

regional reviews led to conclusions similar to those

contained in this audit report. However, Region 8 staff

disagreed with some of our facility-specific conclusions

regarding violator classifications and agreed with the

35 Report No. 000762-2001-P-00004 
Appropriate Violator Classifications and Timely Initial Enforcement 

Actions Would Strengthen Montana's RCRA Enforcement Program 

classifications MDEQ made for facilities MT05, MT18, and 

MT27. 

MDEQ officials generally disagreed with the findings and 

conclusions. MDEQ staff stated that they strongly 

disagreed with our conclusion that the Department 

inappropriately classified violators. MDEQ staff stated that 

the permitting and compliance division did follow the 1993 

enforcement agreement, with very few exceptions, when 

identifying and classifying violators. Also, they stated that 

they undertook timely actions to address violations in 

accordance with the enforcement agreement. MDEQ staff 

explained that in those instances where the Department 

exceeded timelines, unique case-specific factors allowed 

deviation from established response timelines. MDEQ staff 

also stated they disagreed with our conclusion that the 

Department offered inappropriate compliance assistance in 

lieu of enforcement. MDEQ officials stated that the audit 

did not acknowledge that MDEQ had discretion, or 

professional judgment, in determining what actions it took. 

We recognize that classifying violators and determining the 

appropriate enforcement action requires an evaluation of 

case-specific factors and professional judgment. However, 

we also believe that professional judgment and evaluation 

should be based upon the guidelines of the enforcement 

response policy and the enforcement agreement that MDEQ 

and Region 8 agreed to use. In addition, MDEQ should be 

able to clearly demonstrate that its professional judgment 

was appropriate, and where actions deviated from the policy 

or agreement, that MDEQ adequately document its 

rationale. This report discusses those instances where we 

believe MDEQ did not comply with the enforcement 

agreement. 

MDEQ officials also disagreed that non-compliance with 

EPA’s enforcement response policy resulted in an increased 

threat to human health and the environment. MDEQ 

officials stated that compliance with EPA’s policies was not 

the sole indicator of program performance or of protection 

of human health and the environment. In addition, MDEQ 

36 Report No. 000762-2001-P-00004 
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staff stated that while their actions may not have always 

satisfied EPA’s guidance, the audit did not demonstrate that 

exceeding time frames increased the potential for harm to 

human health and the environment. Region 8 staff also 

responded that when evaluating how well human health and 

the environment are protected, it was difficult to specifically 

measure the effectiveness of any single component such as 

compliance with the enforcement agreement. MDEQ staff 

added that the audit did not substantiate any risks, and the 

report’s conclusions portray an inaccurate characterization 

of the success of MDEQ’s hazardous waste compliance and 

enforcement programs. 

We agree that compliance with EPA’s policies is not the 

only way to assure the protection of human health and the 

environment. However, the 1993 enforcement agreement 

between MDEQ and EPA Region 8 states that one of the 

goals of RCRA was to protect human health and the 

environment and both MDEQ and Region 8 recognized 

...that for this goal to be fully met, a high 

level of compliance with applicable standards 

must be maintained within the regulated 

hazardous waste community. To do this 

requires the establishment of a credible 

enforcement presence by the State of 

Montana and EPA. 

In the 1993 agreement, MDEQ agreed to take timely and 

appropriate enforcement action and considered the time 

frames used by EPA in its definition of “timely and 

appropriate” to be goals for good program performance. 

Further, MDEQ agreed that the time frames were guidelines 

that MDEQ and Region 8 should use to review progress in 

individual cases. As such, MDEQ agreed to use EPA’s 

definitions and policies to help meet RCRA’s goal of 

protecting human health and the environment from risks 

associated with improper management of hazardous waste. 

This report discusses those cases that did not meet the 1993 

enforcement agreement requirements. We believe that 

37 Report No. 000762-2001-P-00004 
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Actions Would Strengthen Montana's RCRA Enforcement Program 

compliance with enforcement agreement standards are 

important to ensure a credible enforcement presence that 

provides a deterrent and helps to protect human health and 

the environment. We also believe that our audit results 

clearly showed that by not meeting the time frames in the 

enforcement response policy, MDEQ did not help facilities 

return to compliance as quickly as possible. Facilities that 

remained out of compliance posed a potential threat to 

human health and environment. In addition, MDEQ’s 

untimely initial enforcement actions minimized the 

Department’s deterrent effect. MDEQ should take action 

as quickly as possible to ensure that facilities correct 

violations in a expeditious manner. 

38 Report No. 000762-2001-P-00004 
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EXHIBIT 1 

SCOPE AND METHODOLOGY 

For our review, we elected to focus on Montana after eliminating the other two states in Region 8 

that had significant numbers of large quantity generators. The Region identified areas needing 

improvement with the other two states' RCRA enforcement programs. Region 8 was already 

conducting significant oversight and direct implementation in one state to address its problems, 

and OIG planned to include the other state in a national enforcement audit. 

We obtained comprehensive RCRIS compliance monitoring and enforcement reports for fiscal 

1997 though 1999 for all of Montana’s RCRA facilities. To determine whether violator 

classifications and enforcement actions complied with EPA's enforcement response policy, we 

reviewed inspections and enforcement actions for 47 out of 113 facilities in Montana that had 

violations identified in RCRIS during fiscal 1997 through 1999. We selected 47 facilities to 

review as follows: 

• We reviewed all 17 (out of 17) large quantity generators with violations identified 

during inspections conducted in fiscal 1997 through 1999. 

• We also reviewed all 23 (out of 23) small quantity generators with violations 

identified during inspections conducted in fiscal 1997 through 1999. 

• We chose a judgmental sample of 7 out of the 73 conditionally-exempt small 

quantity generators since Montana has a large universe of these types of facilities. 

The seven conditionally-exempt small quantity generators we chose to review had 

violations identified during inspections conducted in fiscal 1997 through 1999. 

We interviewed officials in MDEQ's permitting and compliance division’s air and waste 

management bureau and the enforcement division, as well as Region 8 staff, regarding MDEQ’s 

actions at the 47 facilities we reviewed. Specifically, we met with the following MDEQ and 

Region 8 staff: 

MDEQ Staff: 

• Two former MDEQ enforcement division case managers, 

• MDEQ enforcement division administrator, 

• MDEQ enforcement division case management section chief, 

• MDEQ enforcement division complaints management section chief, 

39 Report No. 000762-2001-P-00004 
Appropriate Violator Classifications and Timely Initial Enforcement 

Actions Would Strengthen Montana's RCRA Enforcement Program 

• MDEQ permitting and compliance division administrator, 

• MDEQ permitting and compliance division air and waste management 

bureau chief, 

• MDEQ permitting and compliance division air and waste management 

bureau hazardous waste section supervisor, 

• Two MDEQ permitting and compliance division air and waste management 

bureau hazardous waste section inspectors, 

• One attorney in MDEQ’s legal unit, 

• MDEQ administrative officer, and 

• MDEQ director. 

Region 8 Staff: 

• Region 8 Montana operations office waste and toxics team leader, 

• Two Region 8 Montana operations office waste and toxics team inspectors, 

• Two Region 8 RCRA oversight inspectors, 

• Region 8 RCRIS database manager, 

• Deputy Assistant Regional Administrator, Region 8 Enforcement, 

Compliance, and Environmental Justice, 

• Environmental Protection Specialist, Region 8 Enforcement, Compliance, 

and Environmental Justice, 

• Director, Region 8 Technical Enforcement Program, and 

• Senior Enforcement Specialist within Region 8's Technical Enforcement 

Program. 

To determine the requirements MDEQ agreed to use for violator classifications and enforcement 

actions, we used the timely and appropriate enforcement action criteria in the 1987 enforcement 

response policy since MDEQ’s and Region 8's 1993 RCRA enforcement agreement cited the 

40 Report No. 000762-2001-P-00004 
Appropriate Violator Classifications and Timely Initial Enforcement 

Actions Would Strengthen Montana's RCRA Enforcement Program 

1987 policy as criteria and this agreement governed the period of our review from fiscal 1997 

through 1999. In addition, we evaluated MDEQ’s performance against the 1996 enforcement 

response policy to determine what impact, if any, resulted from MDEQ not using the current 

guidance. We also evaluated MDEQ’s performance against the Department’s 1995 penalty 

policy, MDEQ’s 1999 enforcement response manual, and 2000 consolidated cooperative 

enforcement agreement. 

To determine whether enforcement actions returned violators to compliance and whether that 

compliance was timely and documented, we reviewed the 47 facility files for evidence of return to 

compliance by the facility or for evidence of followup inspections. We evaluated MDEQ's actions 

against its 1993 RCRA enforcement agreement with Region 8 regarding timely and appropriate 

enforcement actions. We also visited two facilities to observe how MDEQ conducts inspections. 

To evaluate whether penalty calculations complied with Montana’s and EPA’s RCRA civil 

penalty policies, we reviewed all 16 facility files where MDEQ took formal enforcement actions. 

We did not review facility files for the informal enforcement actions to determine whether a 

penalty should have been assessed. In addition, we did not attempt to recalculate the penalty. We 

evaluated the penalty calculation to determine whether it generally complied with Montana’s and 

EPA's penalty policies, including consideration of economic benefit and multi-day components. 

We also reviewed the files to determine whether they contained sufficient documentation for the 

basis of the penalty calculation, any adjustments, and the final collection. 

To determine whether accurate data were recorded in RCRIS, we compared the results of our 

review of the 47 facility files to RCRIS reports to determine whether RCRIS accurately reflected 

information on inspections, enforcement actions, and penalties. We also reviewed whether the 

facility files contained supporting documentation for activities in RCRIS. Although we used data 

from RCRIS during the audit, we did not evaluate controls over the system. Our review of 

RCRIS included the input and update of data by both MDEQ and Region 8. 

41 Report No. 000762-2001-P-00004 
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EXHIBIT 2 

PRIOR AUDIT REPORTS 

RCRA ENFORCEMENT: RCRA Significant Noncomplier Identification and Enforcement by 

Rhode Island Department of Environmental Management, Report No. E1GSD8-01-0006-

9100078, dated January 21, 1999 

RCRA ENFORCEMENT: Region 2's Enforcement of the Resource Conservation and Recovery 

Act (RCRA), Report No. 1999-1-00224, dated July 21, 1999 

Identification and Enforcement of RCRA Significant Noncompliers by EPA Region III and the 

Virginia Department of Environmental Quality, Report No. 1999-P-00215, dated September 20, 

1999 

RCRA ENFORCEMENT: Resource Conservation and Recovery Act Significant Noncomplier 

Enforcement, Report No. E1DSD8-05-0036-9100110, dated March 23, 1999 

RCRA: Region 7 and Nebraska Resource Conservation and Recovery Act Enforcement, 

Report No. 1999-183-P00211, dated July 6, 1999 

RCRA ENFORCEMENT: Significant Noncomplier Enforcement by EPA and Washington State, 

Report No. E1GSF7-11-0019-8100093, dated March 31, 1998 

Region 8's Administration of State Resource Conservation and Recovery Act Enforcement 

Activities, Report No. E1DSC1-08-0049-1100428, dated September 31, 1991 

Consolidated Report on Review of EPA's Controls Over Administrative Penalties Under the 

RCRA Enforcement Program, Report No. E1G6*8-09-0188-9100479, dated September 18, 1989 

Review of EPA, Region 8's Controls Over Compliance Monitoring of RCRA Enforcement 

Program Consent Agreement Provisions, Report No. E1G27-08-0054-81855, dated 

September 13, 1988 

42 Report No. 000762-2001-P-00004 
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EXHIBIT 3 

VIOLATOR CLASSIFICATIONS 

The 1987 enforcement response policy lists 4 factors to consider when classifying a facility as a high priority violator. The 

following 4 criteria pertain to high priority violators: 

1) A handler who has caused actual exposure, or substantial likelihood of exposure to hazardous waste or 

hazardous constituents; 

2) Chronic or recalcitrant handlers (this includes handlers who are regularly found to have many Class I or 

Class II violations); 

3) A handler who deviates from the terms of a permit, order, or decree by not meeting requirements in a timely 

manner and/or by failing to perform work as required by terms of permits, orders, or decrees; or 

4) A handler who substantially deviates from RCRA statutory or regulatory requirements. 

We considered all four criteria in our analysis. However, in our judgment many of the facilities appeared to be chronic or 

recalcitrant handlers. When considering whether a facility was a chronic or recalcitrant handler, we evaluated whether the 

handler had a history of repeated Class I and/or Class II violations that would indicate a general unwillingness or inability to 

comply with requirements. In addition, we also evaluated whether the facility was regularly found to have violations that were 

not quickly resolved or regularly found with the same type of violation. The blue text below indicates where we 

differed with MDEQ’s violator classifications. 

Facility 

Name 

Inspection 

Date 

MDEQ Violator 

Classification 

OIG Violator 

Classifications 

1. MT05 06/03/96 

11/25/97 

Class II low priority violator 

Class II low priority violator 

Class II low priority violator 

Class I high priority violator 

2. MT13 12/09/97 

08/27/98 

Class I high priority violator 

Class II low priority violator 

Class I high priority violator 

Class I high priority violator 

43 Report No. 000762-2001-P-00004 
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3. MT14 11/06/92 

04/21/93 

11/17/94 

04/18/95 

04/28/95 

10/23/96 

11/04/97 

09/17/98 

11/17/99 

12/01/99 

Class II low priority violator 

Class II low priority violator 

Class II low priority violator 

Class II low priority violator 

Class II low priority violator 

Class II low priority violator 

Class II low priority violator 

Class II low priority violator 

Class II low priority violator 

Class II low priority violator 

Class II low priority violator 

Class II low priority violator 

Class II low priority violator 

Class II low priority violator 

Class II low priority violator 

Class II low priority violator 

Class I high priority violator 

Class I high priority violator 

Class I high priority violator 

Class I high priority violator 

MT14 should have been classified as a 

high priority violator on 11/04/97 

because MDEQ found the exact same 

violations during that inspection as it did 

on 11/17/94, 3 years earlier, as well as 

having a history of other violations. 

Facility 

Name 

Inspection 

Date 

MDEQ Violator 

Classification 

OIG Violator 

Classifications 

4. MT18 03/18/98 Class II low priority violator for 7 

violations stemming from not 

notifying as a small quantity 

generator. 

Class I high priority violator 

MT18 should have been classified as a 

high priority violator since the facility 

was previously inspected on 02/02/95 

and was aware of the regulatory 

requirements. 

MDEQ officials indicated that they 

would have classified the facility as a 

high priority violator had there been the 

same operator at the facility during both 

the 02/02/95 and 03/18/98 inspections. 

Subsequent documents provided by 

MDEQ showed that the same operator 

was in place at MT18 during both 

inspections. 

5. MT22 06/30/92 

05/07/93 

07/09/98 

12/03/99 

Class I high priority violator 

Class I high priority violator 

Class II low priority violator 

Class I high priority violator 

Class I high priority violator 

Class I high priority violator 

Class I high priority violator 

Class I high priority violator 

44 Report No. 000762-2001-P-00004 
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6. MT27 09/10/92 

09/07/93 

02/23/99 

08/24/99 

Class II low priority violator 

Class II low priority violator 

Class II low priority violator 

Class I high priority violator 

Class II low priority violator 

Class II low priority violator 

Class I high priority violator 

Class I high priority violator 

MDEQ staff signed an enforcement 

request on 10/25/99 which listed 20 

repeat violations between 1990 and 

1999 and noted that the facility had been 

recalcitrant since 1990. MDEQ staff 

stated that the enforcement request for 

MT27 should have been more clearly 

written to indicate that the facility 

finally passed the high priority violator 

threshold in 1999. MDEQ officials 

added that similar “threshold” inquiries 

occur in every case, and that MDEQ 

staff use their best professional 

judgement based on years of experience 

to make such determinations. 

45 Report No. 000762-2001-P-00004 
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Facility 

Name 

Inspection 

Date 

MDEQ Violator 

Classification 

OIG Violator 

Classifications 

7. MT32 03/30/92 

03/10/93 

03/30/94 

03/27/95 

02/15/96 

03/12/96 

10/14/97 

09/09/98 

01/05/99 

Class II medium priority violator 

Class II low priority violator 

Class II low priority violator 

Class II medium priority violator 

Class II low priority violator 

Class II low priority violator 

Class II low priority violator 

Class I high priority violator 

Class I high priority violator 

Class II medium priority violator 

Class I high priority violator 

Class I high priority violator 

Class I high priority violator 

Class I high priority violator 

Class I high priority violator 

Class I high priority violator 

Class I high priority violator 

Class I high priority violator 

8. MT33 02/28/92 

02/10/93 

01/11/94 

03/10/97 

03/03/98 

Class II medium priority violator 

Class II low priority violator 

Class II low priority violator 

Class II low priority violator 

Class I high priority violator 

Class II medium priority violator 

Class I high priority violator 

Class I high priority violator 

Class I high priority violator 

Class I high priority violator 

9. MT36 01/12/95 

03/31/97 

05/05/98 

03/24/99 

Class II medium priority violator 

Class II low priority violator 

Class II low priority violator 

Class II low priority violator 

Class II medium priority violator 

Class I high priority violator 

Class I high priority violator 

Class I high priority violator 

46 Report No. 000762-2001-P-00004 
Appropriate Violator Classifications and Timely Initial Enforcement 

Actions Would Strengthen Montana's RCRA Enforcement Program 

EXHIBIT 4-A 

TIMELINESS OF VIOLATION DISCOVERY UNDER EPA’S 

1987 ENFORCEMENT RESPONSE POLICY 

Facility 

Name 

Date of Inspection 

(Evaluation Date) 

Date of Violation 

Discovery 

Days from Evaluation Date 

to Date of Violation 

Discovery 

45 days from inspection date 

1. MT02 11/04/98 11/04/98 

12/29/98 

0 

55 (untimely)* 

2. MT06 03/19/98 04/20/98 33 

3. MT12 08/07/97 08/07/97 0 

4. MT13 12/09/97 02/13/98 66 (untimely) 

5. MT19 05/03/99 07/30/99 88 (untimely) 

6. MT20 11/09/98 11/09/98 0 

7. MT24 09/03/98 10/21/98 49 (untimely)* 

8. MT26 07/09/98 07/09/98 0 

9. MT27 08/24/99 08/24/99 0 

10. MT32 01/05/99 01/05/99 0 

11. MT32 09/09/98 09/09/98 0 

12. MT33 03/03/98 03/03/98 0 

13. MT39 08/25/98 08/25/98 

02/12/99 

0 

170 (untimely) 

14. MT41 03/23/99 04/23/99 32 

15. MT42 11/21/97 12/03/97 13 

16. MT43 03/20/98 03/20/98 0 

*Region 8 staff agreed that MDEQ’s delays were justifiable. 

47 Report No. 000762-2001-P-00004 
Appropriate Violator Classifications and Timely Initial Enforcement 

Actions Would Strengthen Montana's RCRA Enforcement Program 

EXHIBIT 4-B 

TIMELINESS OF DECISIONS TO TAKE FORMAL 

ENFORCEMENT ACTIONS UNDER MONTANA’S 

1999 ENFORCEMENT RESPONSE MANUAL 

Facility 

Name 

Date of 

Inspection 

or 

Evaluation 

Date 

Date of 

Violation 

Determination 

Date of 

Enforcement 

Request 

Days from Date of Violation 

Determination to 

Enforcement Request 

90 days from violation 

determination 

1. MT02 11/04/98 11/04/98 

12/29/98 

02/08/99 94 (untimely) 

40 

2. MT06 03/19/98 04/20/98 06/02/98 52 

3. MT12 08/07/97 08/07/97 09/29/97 52 

4. MT13 12/09/97 02/13/98 05/18/98 95 (untimely)* 

5. MT19 05/03/99 07/30/99 10/18/99 78 

6. MT20 11/09/98 11/09/98 01/07/99 58 

7. MT24 09/03/98 10/21/98 12/03/98 43 

8. MT26 07/09/98 07/09/98 07/31/98 22 

9. MT27 08/24/99 08/24/99 10/25/99 61 

10. MT32 01/05/99 01/05/99 02/08/99 33 

11. MT32 09/09/98 09/09/98 02/08/99 149 (untimely) 

12. MT33 03/03/98 03/03/98 05/01/98 58 

13. MT39 08/25/98 08/25/98 

02/12/99 

03/12/99 197 (untimely) 

30 

14. MT41 03/23/99 04/23/99 05/06/99 13 

15. MT42 11/21/97 12/03/97 07/31/98 240 (untimely) 

16. MT43 03/20/98 03/20/98 05/01/98 41 

*MDEQ officials said that questions concerning litigation risks delayed approval of MT13's enforcement request. 

48 Report No. 000762-2001-P-00004 
Appropriate Violator Classifications and Timely Initial Enforcement 

Actions Would Strengthen Montana's RCRA Enforcement Program 

EXHIBIT 4-C 

TIMELINESS OF DECISIONS TO TAKE FORMAL ENFORCEMENT 

ACTIONS UNDER EPA’S 1996 ENFORCEMENT RESPONSE POLICY 

Facility 

Name 

Date of 

Inspection 

or 

Evaluation 

Date 

Date of 

Enforcement 

Request 

Days from Evaluation Date to 

Enforcement Request 

90 day requirement 

1. MT02 11/04/98 02/08/99 97 (untimely) 

2. MT06 03/19/98 06/02/98 76 

3. MT12 08/07/97 09/29/97 54 

4. MT13 12/09/97 05/18/98 161 (untimely) 

5. MT19 05/03/99 10/18/99 165 (untimely) 

6. MT20 11/09/98 01/07/99 60 

7. MT24 09/03/98 12/03/98 92 (untimely) 

8. MT26 07/09/98 07/31/98 23 

9. MT27 08/24/99 10/25/99 63 

10. MT32 01/05/99 02/08/99 35 

11. MT32 09/09/98 02/08/99 153 (untimely) 

12. MT33 03/03/98 05/01/98 60 

13. MT39 08/25/98 03/12/99 200 (untimely) 

14. MT41 03/23/99 05/06/99 45 

15. MT42 11/21/97 07/31/98 253 (untimely) 

16. MT43 03/20/98 05/01/98 43 

49 Report No. 000762-2001-P-00004 
Appropriate Violator Classifications and Timely Initial Enforcement 

Actions Would Strengthen Montana's RCRA Enforcement Program 

EXHIBIT 5 

COMPARISON OF FORMAL ENFORCEMENT ACTIONS 

USING 1987, 1996, AND 2000 POLICIES 

Facility 

Name 

MDEQ Actions 1987 enforcement 

response policy 

90 days from violation 

determination to issue 

an administrative 

action or refer to 

the Attorney General’s 

Office 

1996 enforcement 

response policy 

90 days from violation 

determination to issue an initial 

order; 120 days to refer to the 

Attorney General’s Office; or 210 

days to enter a final or consent 

order 

September 2000 

consolidated 

cooperative 

enforcement 

agreement 

120 days from 

enforcement request 

to initial action 

1. MT02 12/29/98 violation 

determination 

02/08/99 enforcement request 

signed 

03/10/00 demand letter 

untimely 

437 days from 

violation determination 

to initial action 

untimely 

437 days from violation 

determination to initial action 

untimely 

395 days from 

enforcement request 

to initial action 

2. MT06 04/20/98 violation 

determination 

06/02/98 enforcement request 

signed 

09/01/98 administrative order 

with penalty 

untimely 

135 days from 

violation determination 

to initial action 

untimely 

135 days from violation 

determination to initial action 

timely 

91 days from 

enforcement request 

to initial action 

3. MT12 08/07/97 violation 

determination 

09/29/97 enforcement request 

signed 

02/03/98 notice of violation 

untimely 

180 days from 

violation determination 

to initial action 

untimely 

180 days from violation 

determination to initial action 

untimely 

137 days from 

enforcement request 

to initial action 

4. MT12 08/07/97 violation 

determination 

09/29/97 enforcement request 

signed 

07/30/98 case dropped due to 

lack of evidence 

untimely 

357 days from 

violation determination 

to initial action 

untimely 

357 days from violation 

determination to initial action 

untimely 

305 days from 

enforcement request 

to initial action 

5. MT13 02/13/98 violation 

determination 

05/18/98 enforcement request 

signed 

12/18/98 administrative order 

with penalty 

untimely 

309 days from 

violation determination 

to initial action 

untimely 

309 days from violation 

determination to initial action 

untimely 

215 days from 

enforcement request 

to initial action 

6. MT19 07/30/99 violation 

determination 

10/18/99 enforcement request 

signed 

03/21/00 demand letter 

untimely 

234 days from 

violation determination 

to consent order 

untimely 

234 days from violation 

determination to consent order 

untimely 

155 days from 

enforcement request 

to initial action 

50 Report No. 000762-2001-P-00004 
Appropriate Violator Classifications and Timely Initial Enforcement 

Actions Would Strengthen Montana's RCRA Enforcement Program 

Facility 

Name 

MDEQ Actions 1987 enforcement 

response policy 

90 days from violation 

determination to issue 

an administrative 

action or refer to 

the Attorney General’s 

Office 

1996 enforcement response 

policy 

90 days from violation 

determination to issue an initial 

order; 120 days to refer to the 

Attorney General’s Office; or 210 

days to enter a final or consent 

order 

September 2000 

consolidated 

cooperative 

enforcement 

agreement 

120 days from 

enforcement request 

to initial action 

7. MT20 11/09/98 violation 

determination 

01/07/99 enforcement request 

signed 

05/06/99 notice of violation 

and administrative 

order for corrective 

action 

untimely 

180 days from 

violation determination 

to initial action 

untimely 

180 days from violation 

determination to initial action 

timely 

119 days from 

enforcement request 

to initial action 

8. MT24 10/21/98 violation 

determination 

12/03/98 enforcement request 

signed 

07/23/99 demand letter 

untimely 

276 days from 

violation determination 

to initial action 

untimely 

276 days from violation 

determination to initial action 

untimely 

232 days from 

enforcement request 

to initial action 

9. MT26 07/09/98 violation 

determination 

07/31/98 enforcement request 

signed 

12/18/98 administrative order 

with penalty 

untimely 

163 days from 

violation determination 

to initial action 

untimely 

163 days from violation 

determination to initial action 

untimely 

140 days from 

enforcement request 

to initial action 

10. MT27 08/24/99 violation 

determination 

10/25/99 enforcement request 

signed 

02/11/00 notice of violation 

and administrative 

order for corrective 

action 

untimely 

172 days from 

violation determination 

to initial action 

untimely 

172 days from violation 

determination to initial action 

timely 

109 days from 

enforcement request 

to initial action 

11. MT32 01/05/99 violation 

determination 

02/08/99 enforcement request 

signed 

07/23/99 letter to resolve 

violations prior to 

initiation of civil 

litigation (with 

attached penalty 

calculations) 

untimely 

200 days from 

violation determination 

to initial action 

untimely 

200 days from violation 

determination to initial action 

untimely 

165 days from 

enforcement request 

to initial action 

51 Report No. 000762-2001-P-00004 
Appropriate Violator Classifications and Timely Initial Enforcement 

Actions Would Strengthen Montana's RCRA Enforcement Program 

Facility 

Name 

MDEQ Actions 1987 enforcement 

response policy 

90 days from violation 

determination to issue 

an administrative 

action or refer to 

the Attorney General’s 

Office 

1996 enforcement response 

policy 

90 days from violation 

determination to issue an initial 

order; 120 days to refer to the 

Attorney General’s Office; or 210 

days to enter a final or consent 

order 

September 2000 

consolidated 

cooperative 

enforcement 

agreement 

120 days from 

enforcement request 

to initial action 

12. MT32 09/09/98 violation 

determination 

02/08/99 enforcement request 

signed 

07/23/99 letter to resolve 

violations prior to 

initiation of civil 

litigation (with 

attached penalty 

calculations) 

untimely 

318 days from 

violation determination 

to initial action 

untimely 

318 days from violation 

determination to initial action 

untimely 

165 days from 

enforcement request 

to initial action 

13. MT33 03/03/98 violation 

determination 

05/01/98 enforcement request 

signed 

06/16/98 notice of violation 

and administrative 

order for corrective 

action with penalty 

untimely 

106 days from 

violation determination 

to initial action 

untimely 

106 days from violation 

determination to initial action 

timely 

46 days from 

enforcement request 

to initial action 

14. MT39 02/12/99 violation 

determination 

03/12/99 enforcement request 

signed 

10/08/99 administrative order 

untimely 

239 days from 

violation determination 

to initial action 

untimely 

239 days from violation 

determination to initial action 

untimely 

210 days from 

enforcement request 

to initial action 

15. MT41 04/23/99 violation 

determination 

05/06/99 enforcement request 

signed 

06/11/99 administrative order 

timely 

50 days from violation 

determination to initial 

action 

timely 

50 days from violation 

determination to initial action 

timely 

36 days from 

enforcement request 

to initial action 

16. MT42 12/03/97 violation 

determination 

07/31/98 enforcement request 

signed 

09/29/98 notice of violation 

and administrative 

order for corrective 

action with penalty 

untimely 

301 days from 

violation determination 

to initial action 

untimely 

301 days from violation 

determination to initial order 

timely 

61 days from 

enforcement request 

to initial order 

52 Report No. 000762-2001-P-00004 
Appropriate Violator Classifications and Timely Initial Enforcement 

Actions Would Strengthen Montana's RCRA Enforcement Program 

EXHIBIT 6 

HIGH PRIORITY VIOLATOR PENALTY CALCULATIONS 

THAT DID NOT MEET POLICY REQUIREMENTS 

Penalty Policy Requirements: 

A. Some violations (e.g. operating a facility without a permit) may jeopardize the continued integrity of the State’s RCRA 

program and merit substantial penalties where the violation undermines the State’s regulatory purpose. 

B. Where a violation involves the actual management of waste, a penalty should reflect the probability that the violation 

could have resulted in, or has resulted in, a release of hazardous waste or constituents. 

C. The Department should not consider ability to pay prior to its initial penalty calculation, and rather should assess a penalty 

and then make downward adjustments based on ability to pay. 

D. The Department should explain and document the process by which it arrived at the final penalty figure, as well as 

carefully document the basis for recalculations of penalty computations. 

E. Penalties for multi-day violations should be included where any of the violations continued more than one day. 

F. Penalties should recapture any significant economic benefit of noncompliance that accrues to a violator, and it is 

incumbent on all enforcement personnel to calculate economic benefit, even if it is later found to be negligible (under 

$2,500). 

G. When inability to pay is a factor, other options rather than collecting the full penalty include installment plans, delayed 

payment schedule with interest, or straight penalty reductions as a last recourse. 

Facility 

Name 

MDEQ Penalty Activities A B C D E F G 

1. MT02 MDEQ cited the the facility for five violations, including 

discharging hazardous waste to the ground. MDEQ officials 

assessed a penalty of $188,000 and stated that litigation risks 

justified the penalty reductions. 

X X X 

2. MT06 MDEQ cited the facility for violating restrictions on the land 

disposal of hazardous waste. MDEQ assessed and collected a 

penalty of $1,200. 

X X X 

3. MT12 MDEQ cited the facility for unlawful hazardous waste disposal 

and operating a treatment, storage, and disposal facility 

without a permit. MDEQ did not assess a penalty, and the file 

indicated that MDEQ dropped the case due to lack of 

sufficient evidence. We did not independently review the 

evidence MDEQ staff relied upon to dismiss the case. MDEQ 

informally settled with MT12 for $600. MDEQ did not view 

the $600 amount as a penalty. 

X X X X X 

4. MT20 MDEQ cited the facility for unlawfully disposing of hazardous 

waste without a permit. MDEQ did not assess a penalty, 

although the file showed that the facility owner could pay a 

penalty of $12,980. 

X X X X X X X 

53 Report No. 000762-2001-P-00004 
Appropriate Violator Classifications and Timely Initial Enforcement 

Actions Would Strengthen Montana's RCRA Enforcement Program 

Facility 

Name 

MDEQ Penalty Activities A B C D E F G 

5. MT22 MDEQ cited the facility for operating in a manner that 

released hazardous waste to the soil. MDEQ assessed a 

$13,513 penalty. MDEQ did not assess a multi-day 

component because it could not determine the violation start 

date. One Region 8 official said that MDEQ could have used 

the “violation discovery” date as the start date for multi-day 

purposes. 

X X 

6. MT24 MDEQ cited the facility for operating a hazardous waste 

facility without a permit. In a letter to the facility, MDEQ 

stated that it had evidence to support a $400,000 penalty, but 

that it would be willing to settle for $21,340. MDEQ later 

reduced its penalty calculation to $16,228, and eventually 

settled with the facility for $8,200 according to a 06/09/00 

press release. MDEQ officials stated that litigation risks 

justified the penalty reductions. 

X 

7. MT26 MDEQ assessed the facility a penalty for violations including 

used oil soil contamination. 

X X X 

8. MT27 MDEQ cited the facility for numerous violations, including 

soil contamination, improper drum markings, and lack of 

training records. MDEQ assessed a penalty of $20,497. 

X 

9. MT32 MDEQ cited the facility for more than 11 violations. MDEQ 

assessed a penalty of $34,849. 

X X X 

10. MT33 MDEQ cited the facility for numerous violations, including 

unmarked hazardous waste containers and insecure drum 

covers. MDEQ proposed a penalty of $6,700. MDEQ 

officials stated that an extensive analysis was not necessary to 

determine that the economic benefit derived from MT33's 

violations would have been minimal. MDEQ officials further 

noted that the Department considered economic benefit, yet 

they could not provide documentation concerning the 

calculation of economic benefit. 

X X X 

11. MT39 MDEQ cited the facility for numerous violations, including 

operating a disposal facility without a permit. MDEQ did not 

assess a penalty because they said a penalty was negligible. 

X X X X X X X 

12. MT41 MDEQ cited the facility for a release of wood stripping 

solvents to the groundwater under the facility. MDEQ never 

assessed a penalty. 

X X X X X 

13. MT42 MDEQ cited the facility for not properly registering as a small 

quantity generator. MDEQ calculated an initial penalty of 

$8,500. It was not clear from the file how MDEQ reached an 

eventual settlement of $1,000 after it earlier rejected the 

facility’s $500 settlement offer. 

X X X 

TOTALS 4 6 3 11 10 10 2 

54 Report No. 000762-2001-P-00004 
Appropriate Violator Classifications and Timely Initial Enforcement 

Actions Would Strengthen Montana's RCRA Enforcement Program 

APPENDIX I 

AGENCY RESPONSE 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION 8

999 18TH STREET - SUITE 300

DENVER. CO 80202-2466

(February 23, 2001 ) Date Stamped 

Ref: 8MO 

MEMORANDUM 

SUBJECT: Draft Audit Report: Appropriate Violator Classifications and Timely 

Enforcement Actions Would Improve Montana’s RCRA Enforcement 

Program. Report Number 2000-P-000762-XXXX 

FROM: Jack W. McGraw, Acting Regional Administrator 

Region 8 

TO: Kimberly Victor, Acting Audit Manager 

Office of Inspector General 

Attached is EPA Region 8's response to the above-referenced draft audit report. 

In Attachment 1, this response addresses errors, suggests alternative or modified 

recommendations, and suggests changes for clarity. In Attachment 2, the response 

notes where Region 8 has already taken steps to address the draft recommendations, 

and discusses how the Region plans to address those recommendations that have not 

already been addressed. Reviews conducted by Region 8 using the Unified 

Enforcement Oversight System (UEOS), and prior reviews conducted using the 

Appropriate State Oversight Project (ASOP), have led Region 8 to conclusions similar 

to those contained in your report. 

Because I believe some of your recommendations may be impacted by the 

comments in Attachment 1, we have provided in Attachment 2 a general description of 

how Region 8 will respond to your recommendations. After your final report is written, 

we may be able to be more specific in our response to your recommendations. 

Please note that page numbers in the attached response refer to page numbers 

55 Report No. 000762-2001-P-00004 

Printed on Recycled Paper 
Appropriate Violator Classifications and Timely Initial Enforcement 

Actions Would Strengthen Montana's RCRA Enforcement Program 

in the hard copy of the report you provided on December 20, 2000, and may not 

coincide with the page numbers of the electronic copy of the report. 

Finally, I wish to tell you that the Region 8 staff with which you, Erin Barnes, Tom 

Herrod, and Larry Dare have interacted during this audit have provided very positive 

comments regarding the professional and communicative manner in which you all have 

conducted this audit. I wish to extend my appreciation to each of you for your 

cooperation and consideration. 

If you have any questions regarding this response, please contact Eric Finke 

(406) 441-1130 ext 239, Marvin Frye (303) 312-6902, or Mike Gaydosh (303) 312-

6773. 

Attachments 1 and 2 

cc: John Wardell 

Marvin Frye 

Mike Gaydosh 

Beverly Goodsell 

Eric Finke 

56 Report No. 000762-2001-P-00004 
Appropriate Violator Classifications and Timely Initial Enforcement 

Actions Would Strengthen Montana's RCRA Enforcement Program 

EPA Region 8's Response to Draft Audit Report: 

Appropriate Violator Classifications and Timely Enforcement Actions 

Would Improve Montana’s RCRA Enforcement Program. 

Report Number 2000-P-000762-XXXX

Attachment 1 

General Comments 

1. Throughout the report where the deviation from evaluation criteria is stated, it 

would be useful to include the range and average of these deviations. For 

example, on page 12 the report states “in 7 of the 16 enforcement actions, 

MDEQ’s decision to pursue formal enforcement against a facility exceeded the 

90-day requirement specified in EPA guidance,” and then provides two examples 

illustrating this point. It would be useful and more informative for the reader if 

the report also described the range and average of the days that MDEQ 

exceeded the ERP’s 90-day criteria. 

Executive Summary 

2. Page i, Introduction. It would be helpful to add a brief description of the level of 

program authorization for MDEQ to help clarify what roles MDEQ and Region 8 

have in the hazardous waste program in Montana. During the audit period, 

Montana was authorized for the RCRA “base” program, and RCRA rules 

promulgated up through March 1989. Montana therefore had lead responsibility 

to issue permits (except for corrective action), monitor compliance, and enforce 

most of the significant RCRA requirements in Montana. Montana was not yet 

authorized for RCRA corrective action or the LDR provisions, and is not 

authorized to implement RCRA in Indian Country. Until December 26, 2000, 

when Montana was authorized for corrective action, the EPA Montana Office had 

the lead for implementing corrective action, and did so with the close 

participation of DEQ. The EPA Montana Office also implements all provisions of 

RCRA in Indian Country. 

Chapter 1: Introduction 

3. Page 1, Purpose, 1st paragraph. Compliance monitoring and enforcement are 

two of many components of the RCRA program. When evaluating how well 

human health and environment are protected, it is difficult to specifically 

measure the effectiveness of any single component when compared to the 

57 Report No. 000762-2001-P-00004 
Appropriate Violator Classifications and Timely Initial Enforcement 

Actions Would Strengthen Montana's RCRA Enforcement Program 

whole. Therefore, I suggest changing “The overall objective of our audit was to 

determine whether EPA Region 8's and Montana’s RCRA compliance monitoring 

and enforcement program protected human health and the environment” to “The 

overall objective of our audit was to determine whether EPA Region 8's and 

Montana’s RCRA compliance monitoring and enforcement program followed the 

RCRA ERP and the EPA/DEQ cooperative enforcement agreement.” 

Chapter 2: MDEQ Needed to More Appropriately Classify Violators and initiate 

Timely Enforcement Actions 

4. Page 12, Table 2-1, MT27. Table 2-1 states that MT27 had repeated Class I 

and II violations during 4 inspections between 1992 and 1999, and concludes 

that MT27therefore should have been, but was not, classified as an high priority 

violator in a timely manner. 

MDEQ’s file indicates that the first 2 of the 4 inspections referred to in Table 2-1 

(conducted in September 1992 and September 1993) were followed by 3 

inspections (August 1995, January 1996, February 1997) during which no 

violations were found. The next 2 inspections referred to in Table 2-1 (February 

1999 and August 1999) then found both new and repeated violations. The 

MDEQ file also shows that the violations found during each of the first 2 

inspections were less significant and fewer in number than those found during 

the last 2 inspections. 

As noted in comment 12, the 1987 ERP does not require that a violator be 

classified as a high priority violator merely because it had prior violations. In the 

MT27 case, approximately 31⁄2 years passed during which 3 inspections found 

no violations. Because the violations of the first 2 inspections were both minor 

and few in number, and because MT27 was found to be in compliance for a 

significant period of time after those 2 inspections, MT27 did not meet the 1987 

ERP criteria for classification as a “chronic” violator until the August 1999 

inspection. Therefore, I concur with MDEQ’s classifications for MT27, and 

suggest that MT27 be removed from Table 2-1. 

5. Page 12, Violator Classifications and Enforcement Decisions Did Not Follow 

Policy, last paragraph. This paragraph is confusing because it occurs in the 

section of the report which evaluates violator classification, yet appears to 

evaluate timeliness of enforcement decisions or actions. And for the following 

reasons, it is unclear what is actually being evaluated. 

In making its evaluation, this paragraph compares the 1987 ERP’s 90-day period 

for HPVs between violation discovery and filing of an enforcement action (an 

58 Report No. 000762-2001-P-00004 
Appropriate Violator Classifications and Timely Initial Enforcement 

Actions Would Strengthen Montana's RCRA Enforcement Program 

“action-based” time period) to MDEQ’s time between evaluation (inspection) date 

and filing of an enforcement request (a “decision-based” time period). First, this 

comparison utilizes incompatible start dates (discovery versus evaluation). 

Second, since the “decision to act” will always come before the “act”, this 

comparison will not be relevant to evaluation of MDEQ’s performance against 

any established 1987 ERP criteria. There are no 1987 ERP criteria against 

which to evaluate timeliness of the decision to take formal enforcement action, 

only timeliness of the enforcement action itself. MDEQ’s enforcement process 

contains a decision-making point (the enforcement request), but there is no 

comparable milestone in the 1987 ERP. I suggest that this evaluation be 

removed from the report, or that the text of the report be modified to state that 

there are no 1987 ERP criteria against which to measure MDEQ’s decisionmaking performance. 

6. Page 14, Table 2-3, MT12. The text of this entry in Table 2-3 states that MDEQ 

dropped this case due to insufficient evidence, but at the same time takes issue 

with MDEQ’s failure to assess a penalty. This implies that the auditors disagree 

with MDEQ’s decision to drop this case due to insufficient evidence, but the 

report does not say whether the auditors themselves made an independent 

assessment of the evidence. 

I believe it is the responsibility of the enforcing agency to re-evaluate as 

necessary the sufficiency of evidence for any violation, and an inherent part of 

any re-evaluation of evidence is a potential re-classification of the violator. If 

one accepts MDEQ’s determination that insufficient evidence existed for a formal 

enforcement action, a penalty assessment of any kind would be moot. If one 

believes that sufficient evidence did exist for a formal enforcement action, the 

lack of a penalty assessment seems to be secondary to the issue of improper 

handling of the case overall. For these reasons, I suggest removing MT12 from 

the report both in Table 2-3 and in Exhibit 6 (as an example of an inadequate 

penalty assessment) unless an independent evaluation of the evidence was 

made which concluded that sufficient evidence did exist for a formal enforcement 

action. 

7. Page 15, Region 8 RCRIS Data Entry Needed Improvement, 1st paragraph. 

Since most relevant CM&E data exist for MT02 and MT19 in RCRIS, I suggest 

changing the 2nd sentence to read “For example, Region 8 oversight inspectors 

did not input recent case settlement data into RCRIS for the MT02 facility, or 

recent oversight inspection information for the MT19 facility.” 

8. Page 16, MDEQ Needed to Use EPA Guidance, 1st paragraph. The paragraph 

accurately describes that Region 8 and MDEQ did not update the 1993 

59 Report No. 000762-2001-P-00004 
Appropriate Violator Classifications and Timely Initial Enforcement 

Actions Would Strengthen Montana's RCRA Enforcement Program 

enforcement agreement to incorporate the 1996 ERP, and the paragraph seems 

to imply that Region 8 should have done so. Overall, the 1996 ERP is more 

lenient than the 1987 ERP in its enforcement timeline. Since your investigation 

found that MDEQ would have been untimely under either the 1987 ERP or the 

1996 ERP, I question the implication that the adopting the 1996 ERP would have 

been beneficial. 

Also, Montana’s 1997 legislature enacted the Voluntary Environmental Audit 

Law, which raised serious questions within EPA regarding Montana’s continued 

ability to enforce its own environmental laws. Although Region 8 commented on 

Montana’s proposed Consolidated Cooperative Enforcement as early as April 

1999, until the question of enforceability was resolved by Region 8’s and 

Montana’s signing of an MOU in December 1999, Region 8 maintained that it 

was unwilling to authorize Montana for additional RCRA program requirements 

or formally update the enforcement agreement. 

9. Page 20, Improved Monitoring of Case Progress Needed, 3rd paragraph. This 

paragraph cites MT12 as an example of poor case monitoring. As stated in 

Table 2-3, after the enforcement request had been received, MDEQ 

enforcement staff determined that inadequate evidence existed for a formal 

enforcement action. Therefore, MT12 does not seem to fit the paragraph as an 

example poor case monitoring, and I suggest that MT12 be replaced with 

another example. (See also comments 6 and 19 for relevant information.) 

10. Page 24, Improved Documentation Needed, 1st paragraph. The second 

sentence states “MDEQ needed to better document its rationale for penalty 

assessments and enforcement action classifications, as well as a facility’s full 

return to compliance.” The ensuing text includes statistics which describe how 

frequently penalty assessments were inadequately documented. It would be 

useful to include similar statistics in this and the ensuing paragraphs to illustrate 

how frequently the other two allegations occurred. For example, Region 8's 

CM&E reviews for the years 1997 through 1999 found, with only a few 

exceptions, that MDEQ (permit and compliance staff) generally did document 

return to compliance in both RCRIS and in the handler files. 

11. Page 26, Insufficient Documentation of Enforcement Action Classifications and 

Return to Compliance, 1st paragraph. The paragraph states “MDEQ’s files did 

not always document support for the Department’s decisions to classify facilities 

as low priority violators instead of high priority violators.” 

Neither the 1987 nor the 1996 ERP require documentation to support low priority 

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violators classifications. Perhaps the auditor’s statement was intended to 

suggest something else. If so, I suggest that it be clarified. 

12. Page 28 Recommendation 2-5. Taken together, page 21 of the draft report 

(which states “Additionally, by instituting a triage process where cases are 

prioritized, the enforcement division may be able to better identify more difficult 

cases and allocate resources more effectively.”) and Recommendation 2-5 seem 

to suggest that MDEQ could use a “triage” process to establish case priorities. 

This in turn seems to imply that the auditors believe it would be acceptable for 

lower priority cases to exceed the timeliness criteria of the enforcement 

agreement as long as the higher priority cases were pursued within timelines. 

Please clarify if this is so, and clarify how the auditors would reconcile this with 

the ERP which allows for the more difficult cases (which are also often higher 

priority) to sometimes exceed timelines. 

In addition, please note whether your audit included a review of MDEQ’s 

Enforcement Compliance Information System (ECIS), and whether ECIS is (or 

could be) helpful in meeting the need for case monitoring. 

Exhibit 3: Violator Classifications 

13. Facility MT05. According to Region 8's review of this MDEQ handler file, only 

one violation was discovered during the 06/03/96 inspection – failure to clean up 

a used oil spill. MT05 submitted the required cleanup plan, and according to the 

inspector MT05 cleaned up the spill. 

During the 11/25/97 inspection, the same violation was found again (different 

spill), along with other Class II violations, such as satellite accumulation quantity 

exceeded, used NiCad batteries not labeled “universal waste”, and 3 drums of 

used oil not labeled “used oil”. None of these violations would pose a significant 

threat to health or environment, or potentially cause in inappropriate response to 

a release, nor are they significant deviations from RCRA requirements. 

In both inspection reports, the inspector referred to “some” of the oil being 

released in his discussion of the spills, an indication that the releases were not 

major. On 1/19/01, the inspector verbally verified that the oil spills were in fact 

minor. Unless the used oil spill was a “major” release, even the Region 8 Used 

Oil Field Citation Program would assess a $100 field citation rather than seek a 

formal enforcement action. In my opinion, MT05 did not meet the 1987 ERP 

criteria for a chronic or recalcitrant violator. Therefore, I concur with MDEQ’s 

decisions to issue Warning Letters in both of these situations, and suggest that 

MT05 be removed from Exhibit 3. 

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14. Facility MT18. The table entry for MT18 states “Since the facility was previously 

inspected on 02/02/95 and was aware of MDEQ’s presence, MDEQ should have 

classified the facility as a high priority violator in the subsequent inspection.” I 

disagree. Merely being aware of a regulatory agency’s presence is not a criteria 

of the 1987 ERP for a chronic or recalcitrant violator, and does not make a 

violator an HPV. If that were true, EPA could make a case that any violator 

would be an HPV as long as the violator knew that EPA existed as an agency, 

and there would then be no reason for an ERP. 

According to Region 8's review of this MDEQ handler file, no violations were 

found during the 2/2/95 inspection, and all of the violations found during the 

3/18/98 inspection would be Class II according to the 1987 ERP. MT18 had 

registered as a CESQG in December 1991. A 3/15/95 letter from MDEQ to 

MT18 verified that MT18 had not yet generated sufficient waste to be classified 

as SQG, the next higher generator classification. MT18 registered itself as an 

SQG 3 days before receiving MDEQ’s 3/27/98 Warning Letter requiring MT18 to 

do so, and had complied with the other terms of the 3/27/98 Warning Letter by 

6/1/98. For these reasons, I concur with MDEQ’s decision to classify the 3/18/98 

violations as LPV, and suggest that MT18 be removed from Exhibit 3. 

15. Facility MT22. According to the revised Exhibit 3 which you provided us on 

1/10/01, the violation classification at MT22 with which you disagreed was the 

one associated with MDEQ’s 7/9/98 inspection. There were three other violator 

classifications at MT22 with which you agreed. According to Region 8's review 

of this MDEQ handler file, that violation was for failure to clean up a used oil 

release from a front-end loader. MDEQ classified that violation as a Class II low 

priority violation, even though MT22 had many Class I high priority violations 

discovered during 2 prior inspections in 1992 and 1993. 

According to the MDEQ file for MT22, MDEQ filed a civil complaint in 1992 for 

violations surrounding the operation of a hazardous waste management facility 

without a permit, seeking a court order assessing $10,000 per day per violation. 

(See related remarks in comment 52.) Sixteen additional violations found in 

1993 were added via a 10/7/93 amended complaint. The 7/9/98 oil spill violation 

was handled by MDEQ informally via a Warning Letter. Additional spills (of 

pentachlorophenol and used oil) discovered during a 10/6/99 inspection were 

not added to the complaint itself, but since the complaint was in settlement 

negotiations at that time, MDEQ added the remediation of these additional spills 

as conditions of settlement. 

Strictly speaking, MT22 met the 1987 ERP criteria for a chronic violator at the 

time of the front-end loader used oil spill. However, MT22 had many other 

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significant, extensive, and long-standing violations, including soils extensively 

contaminated by spills and dumping of hazardous wastes far more toxic and 

persistent than used oil. The used oil spill from the front-end loader had little 

relative impact on the threat to environment and public health posed by MT22, 

and classifying the spill as Class I would have had little relative impact on the 

remediation of the extensive violations and contamination at this facility. 

16. Facility MT27. Please refer to comment 4 for the rationale for why MT27 should 

be removed from Exhibit 3 (as an example of improper violation classification.) 

Exhibit 4-A: Timeliness of Decisions to Take Formal Enforcement Action 

17. Title. The “Date of Determination” from the 1987 ERP refers to the date that a 

significant violation is determined to exist, rather than to the timeliness of the 

decision to take or to not take enforcement action. In addition, the 1987 ERP 

uses the term “Discovery” rather than “Determination.” As discussed in comment 

5, the 1987 ERP does not contain criteria against which to measure timeliness of 

the decision to take enforcement action, only the timeliness of violation discovery 

and of the enforcement action. Therefore, I suggest changing the title of Exhibit 

4-A to something like “Timeliness of Violation Discovery.” 

18. Facility MT02. In response to Region 8's SFY 99 End-of-Year Compliance 

Monitoring and Enforcement Review, MDEQ asserted that this was a complex 

case, and that preparation of the inspection report (and therefore achieving date 

of discovery and preparing the Warning Letter) required additional time as 

allowed by the 1987 ERP. Region 8 agreed with MDEQ’s assertion, and noted 

the discovery date to be timely in this case. 

Exhibit 5: Formal Enforcement Actions 

19. Page 36, Facility MT12. The table lists 8/5/98 as the date that MDEQ dropped 

the case due to insufficient evidence, and uses that date as the date of “initial 

actions” for purposes of computing performance against the ERPs and the 

CCEA. August 5, 1998 was instead the date of an internal MDEQ case file 

summary. 

For purposes of determining MDEQ enforcement performance against the ERPs 

and the CCEA, one must recognize that there are actually 2 parts to this case. 

Only one part, the alleged disposal of paint cans in a pasture, was dropped 

entirely as an enforcement case. The other part involved improper handling of 

other paint waste at another location, and MDEQ resolved these violations 

informally. 

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The 8/5/98 case file summary lists a 7/30/98 as the date that the enforcement 

division closed the first part of the case. Although it is only 6 days earlier, I 

believe 7/30/98 provides a better date for the date of “initial action” for the first 

part of this case. Using 7/30/98, the elapsed days in the latter 2 columns 

ofMT12's row in Exhibit 5 change from 364 and 311 days to 358 and 305 days 

for the first part of the MT12 case. 

A more proper date for evaluation of MDEQ’s initial action timeliness for the 

second part of the case would be the date that MDEQ hand-delivered NOVs to 

the three “defendants”. That date was 3/2/98. Using 3/2/98, one calculates 208 

and 155 days for the latter 2 columns of this row for the second part of the case. 

Exhibit 6: Penalty Assessments Did Not Meet Policy Requirements 

20. Page 38, Facility MT12. For the reasons described in comments 6 and 9 above, 

I suggest that MT12 be removed from Exhibit 6 as an example of an inadequate 

penalty assessment. 

21. Page 38, Facility MT22. The text for MT22 states “MDEQ assessed a $13,513 

penalty in accordance with state and federal guidance, and its penalty 

worksheets included calculations for gravity and economic benefit. MDEQ did 

not assess a multi-day component because it could not determine the violation 

start date.” 

Perhaps this statement about MT22 should be clarified. During Region 8's 

review of the PCD file for MT 22, a penalty worksheet dated 1/20/93 was found 

which calculated a total penalty amount of $49,782, of which $12,782 was 

economic benefit, and $29,000 was for multi-day violations. A later enforcement 

request dated 8/2/93 included 12 separate penalty calculation worksheets, each 

of which addressed gravity, economic benefit, and multi-day violations. The 

amended complaint based on this enforcement request sought an additional 

$404,900 in penalties. 

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EPA Region 8's Response to Draft Audit Report: 

Appropriate Violator Classifications and Timely Enforcement Actions 

Would Improve Montana’s RCRA Enforcement Program. 

Report Number 2000-P-000762-XXXX

Attachment 2 

Recommendation 2-1. Require MDEQ to comply with its new consolidated 

cooperative enforcement agreement, particularly when 

classifying violators and taking timely and appropriate 

enforcement actions. 

Region 8 Response: Region 8 agrees with the auditors’ recommendation, and will 

look for ways in which to encourage MDEQ to abide by the 

CCEA. See also Region 8's response to Recommendation 

2-10. 

Recommendation 2-2. Require MDEQ to escalate chronic or recalcitrant violators 

for formal enforcement rather than continue compliance 

assistance. 

Region 8 Response: Region 8 agrees with the auditors’ recommendation, and will 

look for ways in which to encourage MDEQ to do so. See 

also Region 8's response to Recommendation 2-10. 

Recommendation 2-3. Require MDEQ to fully calculate penalties, including 

economic benefit and multi-day components where 

appropriate, when issuing formal enforcement actions 

against high priority violators. 

Region 8 Response: Region 8 agrees with the auditors’ recommendation, and will 

look for ways in which to encourage MDEQ to do so. See 

also Region 8's response to Recommendation 2-10. 

Recommendation 2-4. Provide additional RCRIS training to staff in Region 8's 

Montana Operations Office. 

Region 8 Response: Region 8 (and all of EPA) recently converted from RCRIS to 

RCRAInfo, a web-based data system for RCRA. Region 8 is 

in the process of training all Region 8 RCRA staff on this 

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new system, and will include the Montana Operations Office 

staff in the training schedule. Regarding the missing RCRIS 

data noted by the auditors, the Montana Office staff have 

already prepared and submitted the data forms necessary to 

add that data to RCRIS. 

Recommendation 2-5. Work with MDEQ to develop an effective process for 

monitoring case progress and prioritizing enforcement 

requests using time frames in the State’s new enforcement 

agreement. 

Region 8 Response: The Montana Office and MDEQ have established a meeting 

date to discuss how to better track case progress, and to 

modify ECIS reports to provide the data necessary to do so. 

Recommendation 2-6. Support MDEQ efforts and provide assistance, where 

appropriate, in developing an information-sharing process 

so both inspectors and enforcement staff are aware of 

facility activities. 

Region 8 Response: Region 8 agrees that close consultation between 

compliance monitoring staff and case development staff is 

necessary in order to achieve a sound and effective 

enforcement action. Region 8 will explore with MDEQ 

practices which might enhance this activity. 

Recommendation 2-7. Support MDEQ efforts and provide assistance, where 

appropriate, in developing a divisional cross-training plan for 

staff that provides technical training and information on case 

development. 

Region 8 Response: Region 8 and EPA-NETI have access to numerous RCRAand enforcement-related training courses, and have made 

them available to all states, including Montana. At least one 

of those training courses has been presented in Montana, 

and another soon will be. To our knowledge, Montana has 

attended such training as their resources have allowed. 

Recommendation 2-8. Require MDEQ to sufficiently document its actions related to 

penalty calculations and reductions, violator classifications, 

and instances where MDEQ provides extended time frames 

for a facility to return to compliance. 

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Region 8 Response: Region 8 agrees with the auditors’ recommendation, and will 

look for ways in which to encourage MDEQ to do so. See 

also Region 8's response to Recommendation 2-10. 

Recommendation 2-9. Require MDEQ to maintain sufficient documentation of a 

facility’s full return to physical compliance. 

Region 8 Response: Region 8 agrees with the auditors’ recommendation, and will 

look for ways in which to encourage MDEQ to do so. See 

also Region 8's response to Recommendation 2-10. 

Recommendation 2-10. After discussions and clarifications of the recommendations 

in the draft report, Region 8 and the IG Auditors agree with 

the inclusion of this additional recommendation. 

As part of its Uniform Enforcement Oversight System, the 

Region should assess whether MDEQ has complied with the 

report's recommendations and adjust the level of regional 

oversight and technical assistance accordingly. The Region 

should also include pertinent recommendations as part of 

MDEQ's grant conditions, performance partnership 

agreement, and/or other agreements to ensure they are 

implemented. Finally, the Region should develop a tiered 

approach for states that do not properly classify violators or 

take timely enforcement action. Its approach should define 

when the Region will overfile, directly implement, withhold 

grant dollars, and finally take back the program. 

Region 8 Response: Region 8 has already implemented a Uniform Enforcement 

Oversight System (UEOS) which will allow us to access 

whether MDEQ has complied with the report 

recommendations, adjust oversight and assistance, and 

include pertinent recommendations in the PPA. . Under the 

UEOS, state enforcement programs which fall below the 

minimum standards are subject to targetted oversight. This 

targeted oversight is tailored to aid and encourage the state 

to correct enforcement program deficiencies. Targeted 

oversight can include enhanced file review, technical 

assistance, work sharing, direct implementation, over filing, 

and inclusion of corrective actions as a part of the PPA 

process. The Office of Enforcement, Compliance, and 

Environmental Justice (ECEJ) agrees to the development of 

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a written policy which details the implementation of the 

UEOS targeted oversight escalation process. The Region 

agrees that EPA oversight and involvement can be tiered to 

escalate monitoring of the state and to take actions beyond 

the UEOS approach to include, but not limited to, 

withholding grant dollars, and program withdrawal. The 

Region will develop a policy specifying how it will implement 

this tiered escalation approach. ECEJ has begun a 

dialogue with other Regional programs to discuss this policy 

and the broader program implications of this 

recommendation. 

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APPENDIX II 

ABBREVIATIONS 

EPA Environmental Protection Agency

MDEQ Montana Department of Environmental Quality

OIG Office of Inspector General

RCRA Resource Conservation and Recovery Act

RCRIS Resource Conservation and Recovery Act Information System 

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APPENDIX III 

DISTRIBUTION 

Office of Inspector General 

Inspector General 

Assistant Inspector General for Human Capital 

Assistant Inspector General for Planning, Analysis and Results 

Assistant Inspector General for Audit 

Assistant Inspector General for Program Evaluation 

Media and Congressional Liaison 

Editor 

Divisional Inspectors General for Audit 

Headquarters Office 

Assistant Administrator, Office of Enforcement and Compliance Assurance 

Assistant Administrator, Office of Solid Waste and Emergency Response 

Comptroller (2731A) 

Agency Followup Official (2710A) 

Agency Audit Followup Coordinator (2724A) 

Associate Administrator for Congressional and Intergovernmental Relations (1301A) 

Director, Office of Regional Operations (1108A) 

Associate Administrator for Communications, Education, and Media Relations (1101A) 

EPA Region 8 

Acting Deputy Regional Administrator 

Assistant Regional Administrator, Enforcement, Compliance, and Environmental Justice 

Deputy Assistant Regional Administrator, Enforcement, Compliance, and Environmental 

Justice 

Director, Technical Enforcement Program 

Director, Montana Operations Office 

Audit Followup Coordinator 

Director, Office of Communications and Public Involvement 

Regional Offices 

Regional Administrators 

Montana Department of Environmental Quality Offices 

Director 

Audit Followup Coordinator 

Administrator, Enforcement Division 

Chief, Permitting and Compliance Division, Air and Waste Management Bureau 

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